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Microfiche 

Series 
(Monographs) 


ICMH 

Collection  de 
microfiches 
(monographies) 


Canadian  Institute  for  Historical  Microreoroductions  /  Instltut  canadicn  de  microroproductions  historiques 


^-IQQQ 


I 


.n- 


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la  derni^re  page  qui  comporte  une  telle 
empreinte. 

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Lorsque  le  document  est  trop  grand  pour  etre 
reproduit  en  un  seul  clich6,  il  est  film6  ^  partir 
de  Tangle  sup*rieur  gauche,  de  gauche  ^  drone 
et  de  haut  en  bas.  on  prenant  le  nombre 
d'images  n^cessaire    Les  diagrammes  suivants 
illustrent  la  m6thode. 


1 


MICROCOPY     RESOLUTION    TEST    CHART 
ANSI  ond  ISO  TEST  CHART  No    2 


1.0 


I.I 


1.25 


^i    IIIIM 
III  1.8 


1.4 


^     APPLIED  IfVMGE     Inc 


THE 


American   Supreme  Court 


AS    AN 


International    Tribunal 


4 

V 


i 


15V 


HERBERT  A.  SMITH,  M.A. 


VJ 


^ 


"      Of  tlip  Inner  Temple.  liarrister-at-Law  ;  Professor  of  Jurispruclenre 


md  Common  L.vw,  McGill  University,  Montreal ;  fornierK 
1-ellow  of  Magdalen  CuUege,  Oxford 


S=^ 


OXFORD    UNIVERSITY    PRESS 
1920 


1 


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■  ^      otCanaaa  au  Canaaa 


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IS? 


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THE 

American  Supreme  Court 

AS  AN 

International  Tribunal 


BY 

HERBERT  A.  SMITH.  M.A. 

Of  the  Inner  Templo.  I?urri-.tor-at-Law  :    Professor  of  Jurisprudence 

and  Common  I, aw,  McGill  University,  Montreal;  formerly 

Fellow  of  Magdalen  College,  Oxford 


\F.\V  YORK 

OXFORD  UNIVERSITY  PRESS 

AMI".];. CAN'  HKANCll  :      -  Wfst   ,.ni.  SrnK.tl 
I.(JN!)i)N'.  TORoN'Tf).   M[:LH0URNE,  AND  BOMBAY 


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1 


PREFACE 

WiiATKVKU  I'oiiii  tlic  League  ui  Nations  may  ulti- 
mately take  it  imi-.l  cjiitain  mie  pruvi;,iuns  for  the-  set- 
tlement by  judicial  means  ui  justiciable  disputes  between 

nKinber^  ui  the  League,  b'nr  aboui  a  ceiuurv  and  a 
quarter  the  Si'jjrcUK-  Court  ui  the  L'liited  States  has 
been  cnlru.-ted  under  the  1-ederal  (  unstiir.tiiiu  w  uli  the 
decision  of  such  controversies  between  the  States  of  the 
Anier'can  L'liion.  Since  it  has  uc.rked  under  ])eculiar 
conditKjus  and  within  a  very  re.strici''d  area  the  >tudent 
will  see  that  interences  drawn  from  its  liistors  can  only 
lie  applied  with  considerable  i|uah:lcation  to  an\-  I'ourt 
of  the  Xations  that  may  hereafter  be  s^t  up.  Xeverthe- 
less  this  is  the  only  permanent  court,  as  di:,tinguished 
from  occa.iona!  arbitration  coiumissions,  which  has« 
hitherto  attempted  in  any  degree  to  discharge  the  func- 
tions of  a  true  international  tribunal,  and  it  is  iheiefore 
clearly  desiralile  that  the  nature  of  its  work  should  be  as 
widely  as  possible  studied  at  the  jjrcsent  time. 

This  essay  aims  at  giving  in  a  small  compass  a  rea- 
soned summary  of  all  th,e  inter-State  cases  hitherto  de- 
cided in  the  Supreme  Court.  .\s  1  ;un  not  writing  jiri- 
m.aril}-  for  lawyers  or  other  technical  students  1  have 
so  far  as  pos>ible  avoided  all  technicalities.  (Juestions 
of  procedure,  for  example,  are  almost  en''relv  ignored, 
and  I  have  al.so  pa^-ed  lightlv  over  man.\  matters  a  Inch, 
although  imjjortant  in  them-elve<,  ,-ire  of  interest  mainly 
to  students  of  American  constitinioual  law.  The  Su- 
])reme  ("oin-t  has  been  keenl\'  couseioUs  of  its  fmictions 
as  an  international  tribunal,  ;ind  it  is  this  asiicct  of  its 
work  which   I  wish  to  empli.iMze.      1  have  no  desire  to 


I 


IV 


PREl'ACE 


write  i>n  ii)a,s,'an.];i  citlur  i.,r  or  a<,^^iIlst  the  League  of 
Xatiuu.-,.  aiKl  ii  ivp(,s,,iiie  that  (I'lterent  inmds  may  draw 
different  c<.ndu>i,,n>  imm  a  study  »{  the  liisl,.rv  of  the 
Supreme  Court.  To  my  mind  llie  experiment 'appears 
wuimi  it^  wwn  iunit.  as  a  great  suecess,  but  1  have  no 
widi  t  )  sinr  ,,ver  the  (httiaihie^  wliich  the  Court  lias 
eiicouiuered  or  to  minimize  the  .hfferences  between  the 
eon.Htions  of  a  Xorih  American  Union  and  those  of  a 
I-eague  embracing  nio.t  of  iIk-  civihzed  nations  of  the 
n^irld. 

In  a  work  of  thi^,  kind  it  would  be  merely  pedantic 
to  cite  numerous  autlmritie..  l-or  t!ie  cmvemence  of 
lawyers  1  have  given  references  to  the  decisions  in  the 
original  Supreme  Court  rcpMrt^  uliich  are  to  Ik.-  found 
in  most  of  the  principal  law  liliraries.  Dr.  Jame^  iJrown 
Scott  has  t  ..jcted  all  the  inter-State  cases  into  two 
volunio  pubhdied  in  .\eu  \-,irk  by  the  Oxford  Univer- 
sity Press  under  the  title  of  Jn.licial  Srltlriiirut  of  Cun- 
tro7-cysLs  I  .yni  Stales  of  thr  A'licrkan  rnion.  and 
in  a  third  volume  has  made  a  valuable  analysis  of  these 
eases  in  cliroii.  ,1:  -ical  order.  Ihi.s  exhaustive  work  has 
been  the  principal  s,,iirce-b.  (.k  h.r  mv  es-av.  as  it  mu-t 
lie  tor  any  other  student  who  wishes  to  studv  the  hist,.ry 
ot  the  Supreme  Court  as  an  iiilernational  tribunal. 

i'o  Dr.  Sett  iiers,,nall\  I  am  indebted  f,,r  valuable 
advice  .nid  eticouragcment  in  the  |.reiiarati(Mi  <.f  this 
little  book,  the  suhstance  ot  uhicli  was  delivered  in  the 
form  of  lectures  at  Oxford  in  the  summer  term  of  i()i«>. 
A  word  of  the  warmest  gratitude  is  also  due  t^  many 
generous  hosts  in  Washington,  Xew  York,  and  the 
Soutliern  States,  whose  kindness  to  a  wandering  i'.ritish 
officer  in  i(>iX  did  more  than  any  Iwioks  ciuld  have  done 
to  (luickeii  my  interest  in  American  institutions 

II.  A    S 


CONTENTS 


I'ri:faci: 

Tabi.c  ok  Cases     . 
I.     Origin  of  the  Sltkeme  Court 

II.        I£.\TK.\TOr   THE  JrKISDlCTION 

III.     i;oiM).\Kv  Cases    . 
I\'.     The  Recovery  of  .Siati:  Debts 
V.     Cases  of  Injiky  by  State  Action 
\'I.     'I'm;  I'"nfoucement  oi-  Jiih;ments 
\'ii.     ciem  k.\i.  coxcmsions 

Ini)e.\ 


FACE 

iii 

vii 

I 

14 

34 
60 

73 

89 

106 

121 


tablp:  of  cases 


PAGES 

Ahlcman  v.  Booth   (1858);  Ji    Howard.  506 97 

Alalaiiui  V.  Georgia   (i85(j);  -'3  Howard,  505..  37-^^.55 

.■Ukiinsas  V.  Tennessee  (ii)l8)  ;  -'4''  L'.  S.,  158..  55-6 
Cherokee  Xation  v.  Georgia  (1831)  :  5  I'cters,  1        15. /"3-5,8;,  .'<'j 

Chishohn  V.  Gennjia  (ir'J3>;  -^  Dallas,  419 9,  to.  94 

Ciitteelor  V.  Jiay  (  t8;o)  ;  11   Wallace,  113 t>6 

(./(fta  V.  .V())(/i  iaroHiui  (1917)  ;  -^4-'  L'.  S.,  665.  75 
Dred  Scott  Case;  sec  Scott  v.  Sandford. 

Tlortda  v.  Georf/hi  (1850);   II   Howard,  .'1)3 iS 

Tlorida  v.  Georgia  (  1854  )  ;  17  How  aril,  478 3,  18,  3.',  37 

Hetburii  v.  Grisu.'old  (1870)  ;  8  Wallace,  (x)3.  . .  11 

liul.aiii!  v.  Kentiiiky  (l8"/>):  13(1  U.  S.,  471J.  . .  .  40-1 

Indiana  v.  I'nited  .States  (18113);   I4><  U-  ^^  '48  ''4  3 

yotiu  V.  Illinois  (  1893)  ;  147  U.  S.,  i 4-3 

Kansas  v.  Colorado   (190J);   i8s  U.  S.,   IJ5....  3,^4-5,81,84 

Ke.nsas  v.  Colorado  (  |(X)7)  ;  J'rf)  U.  S.,  46 33,  81-8,97,  III 

Kansas  v.  Cmted  States  (1907)  ;  ,204  U.  S.,  331  31 
Kentucky     v.     Pennison,     Governor     of     Ohio 

(i8(ib)  ;   Ji   Howard,  ft') 18-19. 05-7 

Legal  Tender  Cases  ( 1871  )  ;  ij  Wallace,  457. . .  11113 
Louisiana  v.   Mississipl^i   (iQof));   20J   U.   S.,    I 

and  50 26,  47-52 

Louisiana  v.  Texas  ( li/xi)  ;  176  U.  S.,  i 22-4,  77-9, 87, 97 

McCuUoch  V.  .1/(1  •.v/"""'  (i8i9»  ;  4  Wlicaton,  316  t)*),  90 
Maryland  v.  //Vj/  Virginia  (1910)  ;  217  U.  S.,  I 

and  .=77 53-S 

Minnesota  v.  llileheoek  ( 1902)  ;  185  U.  S.,  3S7. .  31 

Missouri  v.  Illinois  { looi )  :  180  U.  S.,  208 25  6,  79 

.UiMiimi  V.  Illinois  (  i<xVi)  ;  200  U.  S..  49(> 79-81,88,07 

Missouri  v.  Illinois  (  nxV')  :  202  U.  S..  598 81 

Missouri  v.  /iCi'iJ   I  1840)  ;  7  Howard,  fifiO 17.36-7 

Missouri  V.  lo7i.'a  (  l8<)7 )  ;  if>5  l".  S.,  118 36 

Missouri  v.  Kansas  (  li/)8)  ;  213  I,'.  S..  78 53 

Missouri  v.  Kentucky  (1870)  ;  11   Wall..  .395....  39-40 

Missouri  v.  Xchraska  (  1<K)4)  ;  I9<)  I'.  S.,  23....  47 

iW-hraska  v.  /oji'u  (  lS<>2  )  :  143  U.  S.,  359 41-2 

Xehraska  v.  /oti'o  (1892);  145  U.  S..  510 42 

AVti'  llamtshire  v.  /.t)i(;.«i(iH(j  (1883)  ;  108  U.  S., 

Td   2\ 

Xnv  Jersey  v.  Xcxa  York  ( 1830)  ;  3  Peters.  461  14 

Xenj  Ji-rsey  v.  Se-.e  York  {  1831 )  :  5  Peters.  284  1=; 

Kexv  York  v.  Connecticut  (i7w):  4  Hallas,  i..  14 

Nezv  York  v.  Louisiana  (18,^31;  108  U.  S.,  7(>. .  21 
Xorih     Carolina     v.     Tennessee     <  1914) ;     235 

U.   S,.    I .;, 

"  Taquele  llahana.'  I  he  (nxx)i  ;  175  U.  S..  677  K4 
Tcnnsylvania    v.    Wheeling    ir    Hehiionl    Bridge 

Co.  ( l85i>  1  ;  18  Howard,  421 .. .                   ...  77 

vii 


VIll 


TAlU.i:  Ol-    (    \M-.S 


rACFS 


A7;..(/r  Is'jiid  v.  Massiuhust-tls  (iS?,?)  ;  7  Pttcrs, 

05 1    16 

Khodc     Island     v.     .l/(i«aiViuir//i     (  18381;     u 

Peters,  65; 17.  Or, 

Rhode  Island  v.  Massachusctls  {1846);  4  How- 
ard,   591 35-'' 

Scott   V.   Sandfnrd    (1857);    If)    Howard,   303   . 1 1. 'il  ,1,  I  U-,?,  1 17 

South  Carolina  v.  Georgia  (1876)  ;  9,?  U.  S.,  4..  75-7,88 
South   Carolina    v.    I'nitcd   States    (1905);    igg 

r.    S.,  437 ^>3  7 

South  Dakota   v.   Xoith   Carolina    (1904);    igj 

U.   S.,   j8(, Ji-J,  fM,  98-0 

United  States  v.  Louisiana  (  18.S7)  ;  IJ.3  U.  S.,  3->  3^. 'M 
I'nited  Stat-,-s   v.   Louisiana    (l88<S);    IJ7   L'.   S., 

iSj    fM 

I'mted  Stales  v.  Michigan  (1903 >  ;  IQO  U.  S.,  ,?79  ''-J  3,  g*^ 
United  States  v.  .W-c  y'orA-   (1896);  160  U.  S., 

=;()8    *'5 

I'nited   States   v,    ADr/Zi    Carolina    (1890);    136 

r.  S..  Jii 2<)J-:\-2 

I'nited  States  v.  Texas  (  189-')  ;  143  U.  S.,  621..  J9-30 

rtiiJcJ  .S7n/c.t  V.  Texas  (i8()6)  :  162  U.  S.,  i 44-7 

I'nited  States  v.    Wong  Kim  .Irk    (i8<)8)  ;    li*) 

1-.  S.,  654  ' 5« 

I'irginia  V.  Tennessee  I  1803  1  :  14H  U-  S.,  503...  43 

I'irginia  v.  r«');iir.t,?c.'  ( i<)03  1  :  '90  U.  S.,  64 44 

I'irginia  v.   fC-.f/  I'irginia   (1870);   11   Wallace, 

30  ■ 19--M.  .■;?,  38-f. 

I'irginia  v.  /C'.yf  I'irginia  (1907)  ;  20')  L'.  S-.  2<X)  J7-S,  h7-7J 

I'li-ginia  v.  I! '.•.?/  I'ir'iiinia  (  1908)  ;  joo  U.  S.,  514  ^"^ 

Virginia  v.  West  I'iriiinia   (1911);  J.'O  U.  S..  1  ()8 o,  107 

Virginia  v.  West  I'irginia  (  IQII)  :  222  V.  S.,  r;  fx) 

Virijinia  v    If,-.?/  Viroinia  (.<»t3l:  J3'  U.  S..  8<)  fio 

Vin/inia  v.  (l',-.(f  Viruinia  (  1914I  :  -34  U.  S.,  117  fV).  I0« 

Virqinia  v    Jf.-.ff  Viiginui  i  I9I5>  :  J,?H  I'.  S.,  202  70  7-.  90 

Virginia  \.  West  Vir<iinia  (19I'>1  ;  241  V.  S.,  531  HVi 

fir<;i>iiii  V.  West  I'irginia  (  1918)  ;  24'>  V.  S.,  565  uw-4 

Washington  v    Oregon  (1908);  211  V.  S..  127..  52-3 

(l'a.f/iim;.'>')i  \.  Oregon   ( I909>  :  214  U.  S..  20.t..  53 

Worcester  v.  (Jeorgia  (i8j2)  ;  6  i'cters,  515 "4.89 


CHAPTER  I 


ORIGIN  OF    THl".  SL'PRKME  COURT 


In  drder  to  appreciate  tlie  part  which  the  Supreme  Court 
has  played  in  the  history  of  the  L'nitcd  States  it  i-  neces- 
sary to  understand  clearly  the  political  theory  upim  which 
the  whole  Constitution  rests.  This  theory,  shortly  stated, 
is  that  the  Unitetl  States  is  a  voluntary  union  (ji  sover- 
eign and  independent  States.  Thus  the  "  Articles  of  Cimi- 
federation  and  Perpetual  Union,"  ratified  in  17S1,  de- 
clared that  "each  State  retains  it^.  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and 
right  which  is  not  by  this  Confederation  expressly  dele- 
gated to  the  United  States  in  Congre,--  a-'^enibled."  So 
again  in  the  existing  Constitution  it  is  declared  by  the 
Tenth  .-Vmendnient.  which  was  ratitied  in  1791.  that  "  the 
powers  not  delegated  to  the  United  States  hy  the  Consti- 
ti:ti"n,  nr.r  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively  or  to  the  people."'  In  other  words 
the  I'"ederal  Government  in  all  its  organs  is  theoretically 
only  an  agent  enjoying  such  limited  jiowers  as  have  Iwen 
delegated  to  it  by  the  joint  authority  of  the  sovereign  and 
independent  States. 

Looked  at  historically  this  den  trine  rests  upon  a  con- 
siderable straining  of  the  fact>;.  The  several  States  have 
never  actually  been  independent  in  the  '-en-e  in  which,  f'lr 
example,  I'rance  and  Spain  are  inde]Kndent  powor<.  Be- 
fore the  Revolution  they  were  united  by  their  common 
dependence  upon  the  Piriti^h  Crown.  1  hiring  the  war. 
which  lasted  friin  1775  to  I7S,^  thev  were  im  K'->  united 
l)v  till-  necessity  of  cumni'iii  niilitarv  action.     Wlnlt;  the 


f  •  <u.s 


I 
A 


2  \mi:kk  AX  SLTki-:.\!i-:  court 

war  was  still  in  pm-rt-s  thc-y  effected  a  fornTil  unior 
liv  the  "Articles  (>!   Cnnfederati..!!,"  the  ratificatii'iis  (it 
which    were   completed    m    ijSi.      In    17S.,   tin-    nnir^n. 
which  ha.l  ])r..ved  t^,,  loose  to  he  workahle  in  practice. 
was    superseded    hv    the   "Constitution    of    the    United 
States,"  under  which  the  c-untry  has  hecn  croverned  to 
this  (lav.     hi  the  course  ■..I  time  the  mmilur  mi  \\w  States 
has  increased    I'r-ni   tliirteen  t. .   tort\-ei-ht.     The  -reat 
majority  .if  these  new  States  ha\e  heen  created  hy  Fe<l- 
eral  legislation  ,iut  -i  federal  territory,  and  have  never 
enjovcd  even  a  tran.sient  independence.     A  tew  have  been 
acquircl   hv   cc.sion    fr'ni    forei.mi    pwv.ers    and    -nh^e- 
quenllv  erected  into  State-.     Texa<  aUnc  has  known  a 
fleeting  independence   in  the  brief   interval  between  her 
separation   from  Mexico  in   iS;,(,  and  her  incorporation 
into  the  United  States  in  1845. 

But  the  p-litical  importance  of  the  doctrine  is  in  no 
way  affected  bv  the  weakness  of  it-  historical  foundation. 
It  was  deliheratelv  adopted  as  and  -till  remain-  the  gov- 
ermng  principle  ..f  the  whole  Uni.ai,     To  Britidi  readers 
it  has  a  special  interest,  becau-e  it  was  consciously  taken 
in   ifK>o  as  the  fotmdation   for  the  C-n<titution  of  the 
Australian  C<T.imonwealth,  the    t'ramers  of   which   pre- 
ferred  to    f-ll-w    the    1-ederal    principle   of    th.e    United 
States  rather  than  the  unitary  ih.eory  which  govern-  the 
Constitution  of  the  Dominion  of  Canada.'     For  .air  pres- 
ent purptjse  the  imp..rtance  of  the  .Uctrine  he-  in  the  lact 
that  it  has  cmpellcl  the  supn  me  C-urt  in  .leci.lmg  on- 
tr..vcrsie-  between  the  States  to  a--ume  the  r.'le  of  an 
international   tribunal.      An   T-.ngli>l-.   Curt,   deciding  a 
case  between  two  county  councils,  will  treat  the  parties 
exactly  as  if  they  were  two  ordinary  c.,rp..rati.:n-      Ihit 
the   .American   Supreme  Court  is  c-mpelie.l   t..  ad' -lit   a 

1  South    Afriai,   oil    the   other    liand,    ha.s    auopted    the    tiiiit.iry 
principle. 


(.M-'.U.iX  OF  Tlir.  SUPRF.MF.  COL'RT  .^ 

different  attitmlc  when  the  parties  before  its  bar  are 
States  (it  tlic  Uniiui.  Speaking  of  the  application  of  the 
EngHsh  prdceeh'.re  tn  such  case>  Chief  Justice  Taney  said 
in  the  case  of  I'lorida  v.  Ccvryia  in   iiS54:  ' 

"  These  precedents  could  m't  govern  a  ca-e  where 
a  sovereign  State  was  a  party  defenclaiU.  Xor  could 
the  proceedings  i)f  the  l-.iiglish  Chancery  C"ourt,  in  a 
controversy  about  boundaries,  between  proprietary 
governments  in  this  country,  where  the  territoiry  was 
subject  to  the  authority  o\  the  luiglidi  Ciovernment, 
and  the  person  of  the  proi)rietary  subject  to  the 
authoritv  of  its  courts,  be  adopted  a.-  a  guide  where 
sovereign  States  were  litigating  a  question  of  boun- 
darv  in  a  court  of  the  United  States.  They  fur- 
nished analogies,  Init  nothing  more." 

So  again  Chief  Justice  Fuller,  delivering  judgment  in  the 
case  of  Kansas  v.  Colorado  in   1902,-  said: 

"  Sitting,  as  it  were,  as  an  international,  as  well  as 
a  domestic  tribunal,  we  apply  Federal  law.  State  law, 
and  international  law,  as  the  exigencies  of  the  par- 
ticular ca-e  may  demand." 

Bearing  this  fund-mental  principle  in  mind,  let  us  con- 
sider the  ste[)S  which  led  up  to  the  establi'-hment  of  the 
Supreme  Court. 

The  Declaration  of  Independence  was  published  at 
Philadelphia  on  the  4th  July.  1776.  In  the  next  year 
the  delegate-  of  thirteen  States  assemble<l  in  the  same  city 
drew  up  the  "  .Articles  of  Confederation  and  fVrpetual 
Unioii."  which  were  an  attempt  to  form  a  Federal  union 
with  the  minimum  surrender  of  State  rights.  The  first 
article  of  this  document  gave  the  new  commonwealth  the 
Tiatne  which  it  ha-  ever  -ince  retained.  The  second  laid 
down  the  fundanieiUal  principle  of  State  sovereignty  in 

'  1;  liov.ird,  .}.,)-••  -  'i^S  L'.  S.,  146. 


4  AM1-".KIC.\X  SirUl-.MF.  COURT 

the  words  which  have  l>con  alreads'  qiMtcd.  In  the  thirl 
article  the  ol)jcct  of  the  Confederation  is  described  in  the 
following  words : 

"  The  >aid  States  herel^y  severally  niter  intn  a  iirm 
IcaiTUC  of  friendship  with  each  nthcr,  fur  their  com- 
mon defence,  the  security  nf  thvir  liliertie-,  and  their 
mutual  and  j::enera'.  welfare,  hindinj;  theiU'^elves  to 
assist  each  other  at^ain-t  all  force  offered  to,  or 
attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretence 
whatever.'' 

This  IS  not  the  place  to  describe  in  detail  the  adminis- 
trative and  legislative  arrangements  of  the  Confederation. 
Suffice  it  to  say  that  they  were  designed  to  give  only  a 
bare  minimum  of  power  to  the  central  government,  and 
to  reserve  as  much  as  possible  to  the  individual  States. 
A  small  Congress  was  established,  in  .;hich  each  State 
was  to  have  one  vote.  Diplomacy  wa.-  forbidden  to  the 
States,  l)ut  their  right  was  recognised  to  make  war  in- 
dividuallv  in  cases  of  emergency.  .Military  forces  were 
to  be  raised  and  equipped  by  the  States,  though  placed 
under  the  cfintrol  of  Congress  for  the  actual  operations 
of  war.  States  we.e  allowed  to  regulate  their  own 
customs  duties,  so  long  as  these  dirl  not  violate  any 
treatv  obligation-  undertaken  b>-  Congress.  In  short,  the 
Confederation  was,  as  Lord  Bryce  ^ays,  "  rather  a  league 
than  a  national  government." 

The  provisions  for  the  settlement  of  inter-State  dis- 
putes are  contained  in  the  nin.th  Article,  and  begin  as 
follows : 

"  The  Ciiited  States,  in  Congress  assembled,  shall 
also  !)(.■  the  last  resort  of  appeal,  in  .all  disinitcs  and 
difference-  now  subsi-ting,  or  that  hereafter  may 
arise  between  two  or  more  States  concerning  b.  un- 
darv,  juri-diction.  or  any  other  cause  whatever." 


n 


ORIGTX  OF  THE  SUPREME  COURT 


5 


Tlje  .Vrtkl'',  which  i-^  ton  lonj;  to  he  quoted  in  full,  goes 
on  to  provide  that,  when  any  dispute  comes  before  Con- 
gress, it  shall  be  referred  to  a  body  of  commissioners 
^elected  in  a  certain  way  frnm  a  large  panel;  "and  the 
judgment  and  sentence  uf  the  Court,  to  be  appointed  in 
the  manner  before  prescribed,  shall  be  final  and  con- 
clusive." 

Upon  this  it  will  be  observed  that  the  Confederation 
makes  no  provision  for  a  I'ederal  judiciary  or  for  any 
permanent  tribunal  -uperior  to  the  State  Courts.  Dis- 
putes between  States  are  to  be  referred  to  a  body  of  com- 
missioner.-, appointed  separately  to  deal  with  each  case  as 
it  arises.  The  procedure  suggests  an  arbitration  rather 
than  a  lawsuit,  and  is  in  some  respects  a  foresb.adowing 
of  tlie  rules  adopted  by  the  Hague  Conference  in  1907 
for  the  settlement  of  international  disputes.  Nothing  is 
said  about  enforcing  obedience  to  the  decision. 

The  scheme  of  union  thus  de\ised  was  from  every 
point  of  view  a  com])Iete  failure.  Its  weakness  became 
apparent  as  soon  as  the  bond  of  a  common  military  neces- 
sity was  dissolved  in  1783.  The  central  government  was 
far  too  feeble  to  control  the  conflicting  interests  of  the 
several  States,  and  became  an  object  of  general  contempt. 
Treaties  with  foreign  powers  were  not  observed,  while 
irre.-ponsible  legislation  and  violent  disorders  soon  proved 
the  incompetence  ot  the  States  for  separate  self-govern- 
ment. Washington  described  the  situation  as  no  better 
than  anarcliy.  and  the  new  commonwealth  naturally 
failed  to  .:ijminand  an\-  re^])ect  in  the  eves  of  other 
nations. 

It  w;is  evident  that  ^uch  a  '^tate  lif  things  cuuld  not 
last.  I''.ither  di-ru])tion  1  ir  cli>-er  uninn  v.  as  bound  to 
come,  and  in  17S')  delegates  fri.ni  I'.ve  States  met  at 
Annapolis  in  .\Iar\land  to  di-cu<s  p>i-vible  refunns.  In 
the  ne.Nt  year,  acting  on  then-  recommendation,  a   full 


AMEklCAX  SL'1"K1:M1-,  COL'RT 


Convention,  tr'iir.  whicli  Khudc  l-land  was  tlie  only  ab- 
sentee, met  at  I'hiladelphia  and  j;ave  America  the  Consti- 
tution under  which  she  has  liveil  ever  >ince. 

The  debates  in  the  Cunventiuu  ran^i^ed  dVi-r  a  wide 
field,  and  (hsclosed  the  chvisii-n.  which  was  to  la^t  so 
long  in  American  pohtics.  hetween  the  advocates  of  a 
strong  central  government  and  tlie  champions  of  State 
rights.  But  a  sjjirit  of  rLa-Muahleness  was  in  the  air, 
men  of  all  paitic.-  being  deeply  impressed  with  the  grave 
danger  of  the  existing  .situatinn.  In  particular  they 
realised  that  the  Unii.n,  as  it  stoi  d  then,  would  be  almost 
helpless  again-t  external  aggres-inn. 

For  the  present  wc  are  concerned  only  with  the  ques- 
tion of  judicature.  The  first  proposals  fnr  a  national 
judiciary  were  contained  in  the  "  \'irginian  Plan"  pro- 
pounded on  the  29th  May,  17S7,  by  h:dinund  Randolph 
of  Virginia,  afterwards  Attorney-General  of  the  United 
States.  After  consideration  by  a  committee  a  draft 
scheme  was  reported  to  the  Convention,  in  which  it  was 
recommended  "that  the  juri-diction  of  the  national 
judiciary  shall  extend  to  all  cases  respecting  the  ccjllection 
of  the  national  revenue,  impeachment^  of  any  national 
officers,  and  (juestions  which  involve  the  national  peace 
and  harmony." 

In  August  a  draft  Constitution  was  drawn  up,  in  which 
an  endeavour  was  made  to  create  two  national  trilumals 
of  final  autlK^rity.  Disputes  Iietwceu  the  States  involving 
questi(jns  of  inri-diction  or  territory  were  tn  be  referred 
to  the  Senate,  together  with  j  rivate  controversies  con- 
cerning land  claimed  under  c^nllicting  grants  from  dif- 
ferent States.  All  other  ca-es  were  to  l)e  decided  by  the 
Supreme  (''<\n\  and  the  inferi^T  I'ederal  inlmnals. 

This  unsatisfactory  duali.-m  did  n(jt  survive  debate,  and 
ultimately  the  jurisdiction  of  the  Senate  was  taken  away, 
except  its  power  to  hear  impeachments.     On  the   17th 


'% 


ORIC.IX  OF  TTIK  SUrKF.MF.  COURT  7 

Scptt'inhcr,  171^7.  till'  (..'Mii-titutiiiii  in  its  present  fiTin  was 
si^Micd  !)>■  thirty-nine  nut  of  tlie  sixty-live  dele^^ates  who 
had  been  a[)p(iinted  to  the  Convention.  By  June  of  the 
next  _\ear  it  had  received  ratit"icatlon>  from  nine  States, 
which  was  the  niininnun  number  reijuired  under  its  uwn 
terms  (Art.  VII)  to  bring  it  into  furre.  Rhode  Island, 
the  smallest  and  most  intractable  of  the  States,  held  out 
longest  and  ultimately  ratified  on  the  -'(jth  Mav,  1790. 
The  Constitution  thereupon  became  binding  on  the  whole 
country,  and  each  of  t!  e  younger  States  has  since  become 
a  consenting  party  tu  the  Constitution  by  the  fact  of  its 
admission  to  the  Union. 

The  third  Article  creates  the  national  judiciary  in  the 
following  terms : 


I 


"  Section  I.  The  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  court-  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  judges,  both  of 
the  Supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behaviour,  and  shall,  at  stated 
times,  receive  for  their  services  a  compensation, 
which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

"  Srctiitn  2.  The  ju'icial  power  shall  extend  to 
all  cases,  in  law  and  e(iuity,  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority ; 
to  all  cases  atTecting  ambassadors,  other  pulilic  min- 
isters, and  Consuls;  to  all  cases  of  admiralty  and 
maritime  jurisdiction:  to  controversies  to  which  the 
I'nitLcl  States  shall  be  a  party;  to  controversies  be- 
tween two  or  more  States;  between  a  State  and  citi- 
zens of  another  State:  between  citizens  of  diti'erent 
States, — between  citizens  of  the  same  State  claiming 
lands  under  grants  of  ditTerent  States,  and  between  a 
State,  or  the  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects. 

"  In  all  case-  affecting  ambassadors,  otiier  public 


;l 


AMF.RIC.W  SUrKl'.MI'.  COURT 

niini-UT-^  ami  cnn>ulN  and  tlm^c-  in  winch  a  State 
shall  he  partv.  the  Supreme  CMiirl  shall  have  orig- 
inal juriMl.ct'.nn.  In  all  the  ■  ther  eases  l.etr.rc  men- 
tinned  the  Suiirenie  durt  >hall  have  appellate  juns- 
'  bcth  a-  U,  law  and  tact,  with  such  exceptions. 
1 -•   ^"ch   re-ulation-  a^   the  Coni^^re-.   -hall 


(llCtU)ll 

and   niuK'i 
make." 

(  The    reniainin 
cases. ) 


leal    with    criminil 


In  pursuaii 


JilMVlSKJllS     (1 

1  the  authority  tlui-  CMiiferred  Congress 


proceeded  to  pa-^  the  judiciary  .\ct  of  ij:<^,  pr-A-id.ncj 
for  the  establishment  ..t  a  cmplete  .^^-tem  nl  I-ederal 
courts  throui^diout  the  whole  country.  Ot  this  Act  it 
is  necessary  to  cite  the  fourteenth  section; 

"The  Supreme  Court  -hall  have  esclusive  juris- 
diction of  all  controversies  of  a  civil  nature,  where 
a  State  is  a  partv.  except  between  a  State  and  its 
citizens:  an<l  except  also  between  a  State  and  citizens 
of  other  States,  or  alien-,  in  which  latter  cases^ 
shall  have  original  luu  n.it  excluMve  jurisdiction. 

A-ain,  It  will  be  onscrveu.  ho  v.,.,ess  provision  is  made, 
either  in  the  Coii-^titution  i 
f,.r  en-urini^  the  compliance 

of  the  Court.  _  r    ^     r-       r 

In  the  debate-  precolinij  the  ratification  of  the  Consti- 
tution bv  the  various  States  -tron-  opposition  to  the 
whole  idea  of  a  Fe<leral  Supreme  C<  airt  appearetl  m  many 
quarters  In  particular  objection  was  expresse.l  that  the 
provisions  of  the  Article  mi-ht  expose  a  sovereign  State 
to  the  indignitv  of  being  ^unuuoned  to  the  bar  ot  the 
Court  at  th.e  suit  of  a  private  litigant.  John  Marshall, 
afterwards  Chief  Justice  of  the  United  State-,  and  other 
speakers  poured  ridicule  up  n  tbi-  argument,  saying  in 
effect  that  no  one  ever  contemiilated  such  an  absurdity, 
and  it  is  certain  tliat  the  public  opinion  uf  the  day  would 


It 


ill  lie  observed,  no  expre^ 

it-elf  or  in  the  .\ct  of  Congress, 
uf  States  with  the  decrees 


1 


! 


I 


I 


OKKilX   OF  Till'    SUl-RI-Ml';  COURT  0 

never   have  eun^enlcl    u,    -ucli   an    intraclion   ut    State 

"'Vwr-hall.  lu.uever,  vva.  for  .nice  in  the  wron^'.  In  i-yi 
a  luu  wa.  actuallv  lik-a  in  the  Su,.reme  Court  by  one 
ehi.holm  (.1  South  CarnHna  a,an>^.  .he  State  ol  Georgia 
the  claim  heinu  tor  eertau,  n>une>>  aue  to  an  e^ate  ut 
uhich  the  plann.lT  ua.  execut.T.  Georgia  retu.ed  to  ap- 
pear hut  the  ea^e  came  nu  L.r  argument  m  the  next  year, 
;,„,•,  ,„ai.ruv  M-  the  Court  hehl  that  the  act.on  was 

,„,;„jai„aMe.-'  '  Thi.  decision  created  uule^pread  mdigna- 
„.,„  thr  a,,hout  the  Cm...  for  it  ua^  clearly  contrary  to 

the    understanding   up,...    uhi.h    the   g,-ea.    .najor.tyof 
A.ner.can.   had    cou^cted    t.    the    e^taM,d.,ne,vt_  o     a 
Supreme   Court  and   a  Federal   jua.c.ary       1..  (.eor,.a 
f,elin.^  ra..  s..  h.^h  that  a  hUl  ua^  actually  u.troduccd 
into  the  1  eoidaiure  threate.m.g  with  the  death  penalty 
anv  o..e  wh.)  should  attempt  to  enforce  the  judgment. 
Next  var  C.mgress  took  acti.^i  to  overrule  the   judg- 
n,ent  hv  the   I'lcve.uh   .\mendment  t,,  the  Con.t.tut.on. 
..hich  beca...e  e.fectne  in  t-,8.     The  An.endment  ru..s 
a^  follows : 

••  Ihe  judicial  power  .d  the  U.uted  States  slKill  not 
be  con>trued  t.,  extend  to  a..y  .u.t  m  law  ..  qu  t ^ 
eo.mne..ced  or  pr..>ccuted  aga.n^t  one  -.t  the  L  ...ted 
S™hv  citizens  of  another  State,  or  by  c,...en.  ur 
subjects'of  any  ...re.gn  State.' 

Various  attempts  were  made  to  circumvent  the  pr..hibi- 
,  ,rv  effect  uf  the  Amendme.u,  either  by  bn..g...g  su.t 
Sn        Stteofficiala.n„m...a,defenda,rtorbyaState 

end  ;' t  na,..e  to  a  private  plamtiff  for  the  prosecution 
iT'^It  was  really  a  private  claim.  Tl.se^ttempts  W 
ever,  failed.     The  Court  in  each  case  looked  at  the 

2  2  Dallas.  41^- 
1  See  p.  101,  f^st. 


lO 


AMI-KICAX  SLTRICMI-    COURT 


stance  of  th*"  action  rather  than  the  form,  and  invariably 
rejected  all  ^.uch  claini>  as  \vcro  in  snl>>t;.nce  suits  by 
individuals  against  States.  The  detail^  of  tlic-e  aticinjit-- 
belong  rather  Im  the  study  of  .Ninerican  constitutional 
law  than  to  the  history  of  the  C' lurt  in  it-  international 
character. 

A  few  words  may  1k'  added  as  to  the  per>onnel  nf  the 
C(jurt.  The  original  estalilisliineiit  iir.-vided  tMi-  ;i  ehief 
justice  and  five  associate  justices;  the  full  nuniljer  at  the 
present  day  is  nine.  The  judges  are  irremovable  except 
upon  impeachment,  their  tenure  thus  being  slightly  nmre 
■ecure  than  that  even  of  the  llritish  judges,  who  can  be 
removed  up'  n  an  address  from  both  Houses  of  Parlia- 
ment. The.,  salaries  cannot  be  reduced  during  their 
term  of  ot^ice.  Up  to  the  present  there  has  been  only  one 
attempt  to  impeach  a  judge  of  the  Supreme  Court, 
Samuel  Chase  of  Mar-land.  and  this  was  defeated  in 
1805,  thou,L;h  two  convictions  have  bei-n  obtained  against 
inferior  Federal  judges.' 

Washington  was  keenly  sensible  of  his  high  responsi- 
bility in  making  his  original  appointments  to  the  Court, 
and  his  selection  was  amply  justilied  by  events.  The 
first  Chief  Ju-tice  was  John  Jay  of  Xcw  York,  and  the 
associates  were  James  Wilson  of  Pennsylvania,  William 
Cushingof  Massachusetts,  John  Blair  of  \'irginia,  James 
Iredell  of  Xorth  Carolina,  and  Tin  .mas  Johnson  of  Mary- 
land. In  the  course  of  its  history  the  Court  has  included 
many  eminent  men,  but  space  only  permits  us  here  to 
notice  one,  John  Marshall  of  \'irginia,  who  presided  over 
it  from  1801  until  1835.  Marshall  l^as  by  common  con- 
sent now  won  a  permanent  place  among  the  great  lawyers 
Mf  the  world.     To  him,  nv>re  than  to  any  other  man. 


•  The  .ittaLK  "ii  I  li.i-'  "  1-  . 
the  Court  for  its  "  l-Vdcralist  " 
one   was   ("T   v'''-"":i1   m!s,-..i.tr 


j.urrly   political  attempt   to  piinisli 
lo-Tnings.     Of  the  two  convictions 
t    .111(1   one    for   rebellion. 


ORIGIX  OF  THF.  SUI'UKMK  COURT        u 
America  nvvc>  that  pn.gressne  nucrpretati..n  .a  the  Con- 
.tituti.^n  which  has  enabled  it  to  keep  pace  with  the  needs 
of  a  communuy  that  has  grown  far  beyond  anything  that 
its  founders  could  have  imagined. 

No  other  tribunal  in  the  wnrUr>  history  ha.  hitherto 
been  entrusted  with  re^p..n.ib,l.tie.  h.  high  a>  th..e  nf  the 
Supreme  Court,  and  nten  who  to-day  are  contentplat.ng 
the  settlement  of  all  internati(,nal  disputes  by  judicial 
means  may  well  ask  how  far  the  actual  history  of  the 
Court  has  justified  the  contidence   repn-cd   m   n    l.>    Us 

authors.' 

It  is  nut  altogether  easy  to  give  an  unciuahtied  an.^uer. 
\l  the  outset  much  suspicion  and  hostility  had  to  be  over- 
come, and  the  successful  resistance  ot   Ceorgia  to  the 
Chisholm  judgment   affords  a  fair  measure  of  poi)ular 
feeling  in  Revolutionary  times.     Again  m   1857  a  great 
outbreak  of  resentment  was  provoked  by  the  decision  m 
the  Dred  Scott  caser  when  a  majority  m  the  L  ourt  held 
tl-,at  a  <:ave  rcUivning  from  a   free    Terntory  to  a  .lave 
^tate  was  still  a  slave  and  as  .vich  withottt  civil  rights. 
This  doctrine  was  formally  con.lemned  l)y  the  Reptibl.can 
Convention  which  nominated  Lincoln  in  .S.,o.  and  mu.t 
undoubtedly  be  reckoned  among  ^^Y^^''^'  ;^':;^\'^!^ 
tributcd  to  the  Civil  War.     In  two  other  notabl    poht  cal 
cases  where  strong  party  feeling  was  aroused  the  judge, 
of  the  Curt  were  divided  in  opinion  along  strictly  _part 
lines      In  one  ,  f  tlu-e.  the  •'  Legal  Ten.ler  Case        ot 
,S7i.  the  Court  actually  reverse.!  by  a  majority  of  five  to 
four  it>  own  decision  of  the  previous  year.*  ^vhlch  had 
In  rendered  by  a  majority  of  five  to  three     The  dea 
of  one  judge  and  two  new  appointments  to  the  bench  had 
suf^ce.l  to  tun,  the  balance.     I.,  the  other  mstance,  that 

>  Tim  topic  is  treated  more  at  le.isth  i-'  J;h-l-'<,'  )l\- 
■^  Scott  '.  Sandford.  10  Howar.i.  m-    ^ee  p.  <J,.  pos 

ViVtbitnl:  Ulis^old.  8  Wallace.  C03. 


12 


a.\ii:kiia.\  sL'i'Ri'.Mi-:  cut  irr 


of  a  disputed  presidential  electiun  in  1877,  live  judges  of 
the  Court  were  included  in  the  commission  uf  inciuiry, 
ami  they  voted  (jn  purel\-  party  lines  ju-t  a^  did  the  non- 
judicial members. 

On  the  other  hand,  it  will  be  fuund  that  uu  suci.  duubt- 
ful  motives  appear  to  have  affected  the  decisions  of  the 
Court  in  any  uf  the  inter-St;ite  ca^e--  which  we  sliall 
examine  in  the  following  chapter'^.  In  direct  suits  be- 
tween tw(j  States  the  Court  has  always  shown  a  high 
standard  of  imiiartiality,  and  judges  have  more  than  once 
Voted  against  the  contentions  (jf  the  States  to  whicli  they 
themselves  belonged.  The  confidence  of  the  States  in  the 
Court  has  deepened  with  the  advance  of  time,  and  they 
have  shown  an  increasing  will''  gness  to  submit  their  dis- 
putes to  its  decision. 

Before  parting  from  this  questicjn  it  i>  necessary  to 
bear  in  mind  that  the  Court  did  not  prevent,  nid  was 
given  no  tjpportunity  of  preventing,  the  Civil  X^'ar.  '!  he 
innnediate  d'-pute  in  ihe  I'ivil  W'.ir  turned,  not  upon  the 
ethics  of  slavery,  but  upon  the  right  claimed  for  thj 
Southern  States  to  withdraw  from  the  Union.  That 
question  had  been  left  open  l)y  the  Constitution,  and  ii 
it  ever  had  c  'ine  before  the  Supreme  Court  we  may  lie 
certain  that  neither  party  would  have  tamely  ^ubnntted 
to  an  adverse  decision.  The  is-ue  was  clearly  delined  on 
the  joth  December,  1860,  when  the  South  Carolina  Con- 
venti(jn  repealed  the  onlinance  ratifying  the  Constitution, 
and  declared  that  South  Carolina  resumed  her  sovereign 
place  .imong  the  nations.  Other  Southern  States  quicklj^ 
followed  suit,  and  it  is  obvious  that,  if  tliey  were  right  in 
their  contention,  the  jurisdiction  of  the  Supreme  Court 
over  the  controversy  was  annulled  !)y  the  mere  fact  of 
secession.  As  a  matter  of  fact  tlie  South  was  fully  de- 
termined to  fight,  if  necessary,  in  support  of  its  claim, 
and  Northern  opinion,  after  a  certain  amount  of  hesi- 


ork;ix  of  thi'.  srrKF.Mi-,  rorKT      '3 

tancv.  arr.vcd  at  an  cqualiv  strong  ,!ct.rmmat,,,n  to  tl^ht 
for  the  Un,.,n.  Ultimately  the  matter  wa^  -;';-"-■  ;;;*;; 
and  the  vietnry  ,.t  the  North  sva.  recnnle.l  m  three 
Amemhnent.  •  totheCun.tituti-.n. 

Then,..raluf  thi<.urelyi.  thatno'   •vsan.lnnlaw 

cur;,  u,...  earth  can  m  the  la.tre.ortt-estrani  State, 
.,r  nat.nns  whn  are  ftiUv  .letermme.l  ,o  h,ht  rather  than 

,„f.re,n  what  th.venn.Hlcr  to  he  their  jttstelami.  I  he 
,U„na.e  .nre  (.  r  uar  lies  not  m  any  part,a,lar  ju.haal 

n,aehmerv.  hut  m  the  .growth  an.-n^  all  natvms  o  a 
..,lHnRnc;s  to  settle  e,  ntvc^-er-ie,  by  ju<he,al  rather  than 
liv  warlikf  method-. 
■•Ih,-  .-  not  a  nierelv  evnieal  eonehiMon.  nor  does  it 
iu.tn-v  ns  ni  -avni.L;  that  there  w  no  .phere  oi  n.etnlness 
ior  an  mternational  conrt.  Any  war  ,-  a  ternhle  thm^. 
and  a  court  which  cannot  prevent  all  war.  wdl  have 
justifud  n>  existence  it   it  eveti  succeeds  iit  preveittmg 

"'"h,  ,he  (oll.,v.inp  chapter,  we  d^dl  try  to  discover- how 
far  \n,eru-an  experience  justifies  u.  iti  puttmt:  nur  hopes 
,„  a  permanent  international  court  as  a  means  ,,t  prcscrv- 

'  .  .  •         .    _  r  ^1 .-1,1 


iiij;  peace  anions  the  nations  of  th 


e  w' 


,rld. 


1  o.  ,,,1,  i*,S-  1-th  if^-o  riir  li'^t,  wliiili  purports 
,;;,^'.!\lf^.:«  o  s'e  S'MUT-«^w,.h  w,„...  has  ....n  null,... 
1m   practice   by   the   ...gcnu.ty   of    Southern   statesmen 


CHAI'Tl-.K    II 
EXTENT  OF  THE  JL'KISDICTIOX 

Tin:  third  Article  of  tlu-  (,'nnMitution  \va■^  drat'teil  in 
somewhat  general  term-,  and  many  points  were  left  to  he 
settled  hv  the  O  urt  it-elf  a-  they  >hould  arise.  This  was 
prohahly  inevitahle.  Any  attemjjt  to  \.ork  out  every  con- 
ceivahle  problem  in  i;-'^;  w -nld  undoubtedly  have  pre- 
vetited  any  agreement  upon  tlie  main  (jucstiun  of  the 
acceptance  of  the  Constitution.  The  first  necessity  was 
to  induce  the  suspicious  States  to  accept  any  Court  at  all. 
That  being  don>  uld  ri-niain  with  the  C-urt  U-elf  to 

justifv  its  exi-;  .  -  'a  the  eyes  of  the  American  people 
by  the  wisdom  and  fairness  of  its  decisions. 

Under  the  Confederation  only  one  inter-State  dispute 
was  decided  hv  ilie  commission  procedure  already  de- 
scribed Ideven  boundary  cases,  mostly  of  long  stand- 
ing, remained  misettled  when  the  Confederation  was  suc- 
ceeded by  the  "more  perfect  union"  of  the  present 
Constitution. 

The  ."States,  however,  showed  no  undue  eagerness  to 
appeal  to  the  new  tribunal.  an<l  it  was  not  unt  1  1846  that 
the  first  final  decree  was  entered  in  a  suit  between  two 
States.  The  earliest  cases  deal  only  with  -mall  points  of 
procedure,  and  are  therefore  of  scarcely  more  than  tech- 
nical interest.  In  1799  New  York  tiled  a  suit  against 
Connecticut'  arising  out  of  a  boundary  dispute,  and  in 
1830  an  action  was  begun  by  New  Jersey  against  Xew 
York,=     Neither  suit  was  prosecuted  beyond  the  initial 


1 4  Dallas,  I. 


-J  Peters    ^6i. 


14 


,.X-1TNT  nr  TllK  j! -KISl  .U Tl' >N  'S 

'"  V,  F."  --"'"■"'<'^'"*'''*''""*''  '''■'''''; 
sary. 

„(,hc,,arm,  before  ..sk.r.  ^      ^^^^^^  ^^^   ^^,,    ,„ 

,„  ,  ,..,„^.  „e  .«,>  .■■l">       "  ,,,    „„ 

-'"'•' ''''.r^'n  :"-><■•  •'-'•"• "•-^''^, 

.•""-  a„  „,„.1ea-.u-,  '--;;>,  „„,.„.  ,„a,  ...ere 

,,,,,,,,,,,,,,,,,.  „o,e  e,,tuk,M..  I  . 

Su,K.s--wU,u,,d„.n,e..unS-.^l^K     '^^^^ 

^:^a;::;r;e::^,r.o..Ma..,a..^^^ 
■^^— r  ^n=nt;:^t.a.,, , 

=  5  Peters.  I.    Sec  pp.  7^-5.  ?"'• 
»  5  Peters,  284-5-  ^ 


i6 


AMKi^ii.AX  si'!'ri-;m;';  ioukt 


I 


between  two  States  was  tir-t  fully  argued  and  decided  iii 
the  case  nt  Rhode  Island  v.  Massachusetts,  which  bec;an 
•n  '833,'  liut  did  IK 'I  reach  a  iiiial  judgment  until  1X4(1." 
The  suit  was  lirnught  t<i  determine  a  hnundarv  (hsputc 
of  nearly  two  hundrcil  \ear-  Manihiig,  and  Im  the  ordi- 
nary reader  it  w.-nlil  aj^.i  ir  that  thi>  was  preci^elv  tlie 
I.iiid  Ml  cnritn>ver-y  wh.ich  ua~  intcndei!  h\  the  C'nn-ti- 
tntiou  to  he  (k'cidcd  in  the  Supreme  (  nrt.  Ilut  tlie  doc- 
trine of  State  xivercignty  wa>  tenaciously  held  for  long 
after  the  Rev..lulinu.  and  Massachusetts  contended  streti- 
uously  and  in.geuinusU  for  the  view  that  the  (|ue~tinn  ihd 
Hot  fall  within  the  jurisdiction  of  the  ('■luri.  Counsel 
maintained  that  the  dispute  wa-  wholly  political  in  its 
nature,  an.l  that  the  Court  could  not  determine  political 
controversies:  that  no  law  exCted  to  govern  the  ca^e; 
that  there  was  no  pmcedure  ajiplicahle  to  it;  and  that 
there  was  no  means  oi  enforcing  the  deci-ion  of  the 
Court. 

These  arguments  found  favour  in  the  eves  of  Chief 
Justice  Tanev.  wh/.  was  an  ardent  believer  in  the  doctrine 
of  State  right-,  hut  v,ere  decisively  overruled  by  the 
majority  of  the  (  ^urt.  The  jurisdiction,  as  Mr.  lusticc 
Baldwin  pointed  ■■nt,  wa-  (jerived  from  the  con  cut  of  the 
several  States  when  they  accejjted  the  Constitution;  and 
as  a  matter  of  hi-tory  it  was  ea-y  to  show  that  boundary 
disputes  were  the  commonest  causes  of  controversv  and 
th(we  which  it  was  especially  desired  to  sulimit  to  iiulicial 
decision.  Since  di|)lomatic  intercourse  was  forbidden  to 
the  States  by  the  first  .Article  (Sec.  10)  of  the  Constitu- 
tion it  was  clear  that  such  controversies  could  not  be 
peaceably  terttiinated  except  by  judicial  means.  So  far 
as  matters  of  law  were  concerned,  the  question  could  be 
treated  just  as  if  it  were  a  boundary  case  l)ct\vecn  two 
private  landowners.  Questions  political  in  their  origin 
'7    Peters,   651.  j   Howard,  501. 


KXTI'XT  OF  Till'.  JUKISDlCTinX  \n 

could  hcc-nn-  jiulicial  hy  >ul)mi-i(,n  to  a  proper  tribunal. 
Proccdurr  coiild  lie  rf^ulatcd  Ly  tollowiiig  the  lui^liMi 
practice,  ^uhjcct  to  any  necessary  mnditication>.  One 
passage  from  the  jud-nient  may  well  he  quoted; 

"We  are  thn-  pointed  to  the  true  lioundary  line 
l)etween  political  and  judicial  ])u\ver,  and  (lue-tion-.. 
A  sovereii,m  decides  by  hi.->  lAvn  will,  which  i>  the 
supreme  law  within  hi'>  own  l.oumlary;  a  court  or 
judge  decides  accordin.L,^   to   the   law   prescribed  by 
the  sovereign  i)owcr,  and  that   law   i^   the  rule    l-  r 
juiknnent.      d'hc   Milmhssion   b^'   the   sovereigns   or 
states  to  a  c-urt  of  law  or  equity  of  a  controversy 
between  thcni.  without  prescribing  anv  rule  ot  de- 
cision  give<  power  to  decide  according  to  the  appro- 
priate'law  of  the  case,  which  depends  on  the  subiect 
matter    the  source  and  nature  of  the  claims  ot  i he 
parties,  and  the  law  which  governs  them,     bn-m  the 
time  of  such  submission  the  question  ceases  to  be  a 
political  one  t.-  be  determined  by  the  sic  rolo,  sic 
iubco  of  political  power:  it  comes  to  the  court  to 
be  decided   bv   its    judgment,   legal   discretion,   and 
solemn  consideration  of  the  rnlcs  .,t  law  ;ipprMpnate 
to  its  nature  as  a  jndicial  question,  deiiending  on  the 
exercise  of  jndicial  p-wer;  as  it  is  bound  to  act  by 
known  and  settled  principles  of  national  or  munici- 
pal jurisprudence,  as  the  case  re(|nires. 

The  (|uestion  of  jurisdiction  was  determined  m  i8,^8. 
but  the  ca^e  dragged  on  for  many  year.  Ma^sachnsetts 
raisinn-  everv  kind  of  technical  delay  m  <a-der  t^,  evade 
or  po^p..ne'a  deciM..n  on  the  merits.  Uhnnately  the 
cause  came  on  for  final  hearing  in  1^4^'.  •■^"'1  'l^^'  -1"''.^^- 
ment  of  the  Court  was  delivered  in  favour  ot  Massa- 
chusetts, mainly  .>„  the  gr.nn.l  of  long  possession  of 
the  disputed  territory. 

In  the  next  casc.  that  of  Missouri  v    /,):ca-'  m   1S49, 
p.,  question  of  jurisdiction  arose,  as  the  bill  was  filed  by 

>,.   Peters.  737.  ^  '^ '    llouara.  «X). 

r.  4345  ^ 


iR  AMKKKAX  SUPKF.MK  COURT 

cnn>f!il  lit"  1m. th  parties  in  nrdcr  to  settle  a  question  of 
boundary.  In  1S50  another  boundary  suit  was  tiled  by 
Florida  au^'li^-t  <  ieor^jia.'  in  wiiich  ai;ain  n<)  objection  was 
raised  to  tlie  juriMbction.  Tlie  case  bowever  ineru-  at- 
tention because  of  tbe  successful  claim  made  by  the 
United  States  to  intervene  in  the  action,  when  tbe  ca-e 
came  on  for  argument  in  1S54"  I^'ii-  claim  was  liascd 
partlv  on  the  ground  that  the  validity  of  I'ederal  grants 
was  involved  and  panly  ..n  the  interest  which  tbe  Federal 
governmciu  bad.  on  behalf  of  itself  and  all  the  other 
States,  in  -eeing  th;it  any  ([uestion  of  State  boun.daries 
was  correctly  decided.  Tecbnicall}  such  a  claim  was  open 
to  objection,  becau-e  the  I'nited  States  desired  tn  inter- 
vene and  produce  evidence  without  assuming  tbe  liabili- 
ties of  a  party  to  the  action.  Tbe  Federal  contention  was 
opposed  by  both  the  parties  to  the  suit,  but  a  majority  of 
the  (I'urt  dfcided  to  disregard  teclmical  <jbjecti(jns  and 
to  adnnt  the  intervntion.  '!'he  ca-e  is  interesting  because 
it  illustrates  ub.at  ba^^  always  been  tbe  consistent  policy 
of  tbe  Court  in  handliu"  mter-St.ate  contr.  >verMes — 
namely.  ;i  refu-a!  to  allow  the  tcchiucal  rule-  of  procedure 
which  obtain  in  jirivate  cases  to  interfere  with  a  full  con- 
sideration of  every  case  upon  its  sub-taiuial  merits. 

The  jurisdiction  was  again  a-sertcd  after  .argument 
in  iS'k)  '  in  a  rase  where  Kenturkx'  sought  to  compel  the 
(iovernor  of  Ohio  by  Diaiulmiius  {<<  deliver  up  for  trial 
a  free  negro  who  was  accused  of  violating  the  Kentucky 
l,t\y  by  assisting  the  escape  of  a  slave.  Feeling  "U  tbe 
slavery  (piestion  ran  high  in  jH(h-),  and  it  was  abundantly 
clear  that  nothing  short  oi  superior  force  would  induce 
tbe  authorities  of  Ohio  to  deliyer  up  the  fugitive.  The 
Court  affirmed  its  jurisdiction  to  hear  the  case,  and  luld 
that  the  action  ;igainst  the  Governor  was  in  substance  an 

'  It  Howard.  -'O,^ 
=  17  Howard.  -t7>*^- 
'Kentucky  V.  Ucnmson.  Govcnioy  of  Ohio:  2\  How.Trd.  66. 


EXTI-.XT  OV  TWV.  JIUISDKTIOX  '0 

.ction  against  the  State.  Procedure,  it  wa.  asauT  laid 
down  wa.  a  matter  entirely  within  the  discretion  ot 
the  Court  and  the  procedure  by  nuvuhnuus  wa>  the  mo.t 
appropriate  m  the  particular  ca^e.  Thev  went  on  t.)  say 
that  the  text  of  the  Coii'^titution  inn- -cd  "PO"  ^'^^^  ^°^" 
ernor  an  absolute  obligation  to  deliver  up  all  lugitives 
from  justice,  irrespective  of  the  offence  with  which  they 
were  charged,  and  he  was  not  entitled  to  exercise  any 
discretion  in  the  matter.  But  although  this  wa.  so,  the 
Court  hel<l  that  there  was  no  means  provided  by  the  law 
for  enforcing  the  obligation. 

'■  Th<>  performance  of  thi?  duty,  however,  is  leit 
t,,  depend  on  the  tidelitv  of  the  State  Executive  to 
the  compact  entered  into  with  the  other  States  when 
it  adopted  the  Constitution  of  the  Lnited  States  and 
became  a  member  of  the  Union.  .  .  .  It  the  Cov- 
ernor  of  Ohio  refuses  to  discharge  this  <.uty.  there 
i.  no  power  delegated  to  the  Ceneral  (Jovernmeiit. 
either  through  the  ludicial  Department  or  thnuigh 
anv  other  UepartmJnt.  to  use  any  coercive  means  to 
compel  him.  And  up-n  this  ground  the  motion  lor 
the  )iianJai)tits  mu-t  be  nverrulcd. 

The  next  ca^e  raiding  the  question  ..l  ir.ri^diction  came 
-ifter  the  Civil  War  and  ar.w.  out  nf  it.     During  the  aar, 
in  the  vear  iSAi.  the  people  of  the  m-amtain  counties  m 
the  northue-l  of  Virginia  brnke  off  from  the  mam  body 
of  that   ^tatc  and  erecte.l  themselves  into  a  new   State 
under  the  title  r,f  WeM   X'irginia.     The  .Iralt  o.istitu- 
tion  prnvi.led  that  two  counties,  the  sympathies  ol  which 
vere  d.)ubtful.  might  have  the  option  ot  joining  the  new 
State  bv  plcbiscilr.    Legal  assent  to  thi>  arrangement  was 
given  in  Mav,   i86j,  by  a  l..ly  which  Congress  recog- 
nised a^  the  l:uN  inl  legislature  of  X'irginia,  though  m  tact 
it   only   represented   the  minority   of   Virginians   whose 
'24   Howard.    lOVio.     Sec   Cliaptcr    VI,  tost. 


20  AMRKkAX  SH'IvI'MI'.  CDL'RT 

?vnip;itIii'.'S  wrre  witli  the  X'  rih.  The  consent  of  Con- 
;:;rv'ss  havin;;  ijctn  (hdy  nhtaiiicd,  a  new  State  of  the 
Union  eanic  into  exi.-tence  on  the  JOtli  Ajiri!,  1863. 
Shortlv  at"ter\varil>  the  tun  (liubtiul  counties  vited  for 
incln^ii  iH  in  W'l  -t  \  ir.^inia.  and  were  ihil\'  handed  o'.  cr 
with  the  C'lrdial  consent  of  the  nunnrity  le.^i-laturc  of  the 
|)arent  State.  In  iSdfi  Congress  passed  an  act  recog- 
nisinL,"-  tlie  tran^'er. 

In  tile  ea-ter,i  tlieatre  i^i  war  ti'.ditin;:  ended  with 
Lee'-  .-nrrender  \'>  (iram  at  Appnnialt'  x  in  April,  1X03. 
hi  Deceinher  of  the  >anie  year  the  le.gislatnre  nf  \"ir- 
.cjinia,  which  now  an;ain  really  represented  the  people. 
passed  an  act  repealin,i:f  the  act>  tnider  which  the  two 
counties  had  heen  transferred.  This  was  followed  up  hy 
a  suit  in  the  Supreme  Cmirt  a^jainst  West  \'irginia,' 
which  caine  on  f^r  argument  in  1870. 

\\'e~t  \'irL,i!iia  demurred  tn  llie  jurisdiction  on  the 
same  ground  a>  that  taken  1)_\'  .Ma->;;clui>ett^  in  1838, 
namely,  that  the  (jue-tion  was  in  its  nature  U' it  judicial, 
i)ut  i)urely  iiolitical.  In  view  of  the  earlier  cases  there 
could  1)C  hut  one  answer  to  this  contention. 


"  We  C'inr-ider,  therefore."  said  Mr.  Justice  .Miller 
for  the  majority  of  the  Court,  "  the  estal)li,>hed  doc- 
trine of  this  Court  to  be.  that  it  ha-  jurisdiction  of 
questions  of  boundary  between  tw.i  States  of  this 
Union,  and  that  this  jurisdiction  i>  not  defeated, 
because  in  deciding  that  question  it  becomes  neces- 
sary to  examine  into  and  construe  compact-  or  agree- 
ments between  those  States,  or  because  the  d.ccrce 
which  the  Court  may  reufler  affects  the  territorial 
limits  of  the  political  juri-dictinn  and  sovereigntv 
of  the  State-  which  .ire  parties  to  the  proceeding."  " 

Upon  the  merits  of  the  case  the  Court  held  thai  X'irginia 

was  liound  by  the  acts  of  her  minority   legi-lature,  to 

»  Ti  \V.->l!.irc.  3<).  -'  II   Wallaoc,  .^5. 


i'.XTl-.NT  ()! 


II- 


iL-Ki>nu-i'i()\" 


;i 


which  e;..nKrc..~  ha-l   a>-.cntc.l.      llu-  two  counties  were 
therefore  adjml^-ed  t-i  We^i  \'ir-inui, 

-jhc    jnri^clictinn   oi    the  C^un   ua<  now   well  estab- 
lished, and  no  new  (jue^tion  arose  i-  r  many  years.     The 
ca^e  of  .V,-u'  llampsliir.'  v.  Louisiaiu:  '  ni  1883  need--  no 
more  than  a  passing;  notice,  l.ecau>e  it  was  not  s..  much 
:i  controversy  l.etween  Stale^  as  an  atlcmi.t  ^n  the  part 
,,{  individuals  with  th.c  connivance  of  a  Slate,  to  evade 
the   l-:ieventh   Amendment.     The  case  arose  nut   .-i    the 
inability  .r  unwillin-ness  of  Louisiana  t..  meet  her  habdi- 
ties  on  certain  bond^,   which   weie   held   by   cilixen.  ot 
\ew  Hamp^hire  and  New  ^^  tU.     r.eini,^  miable  to  sue  m 
their  own  names  tlie  h.lder>  made  an  arrangement,  con- 
f.rnicd  bv  statute,  with  their  respective  Slate  authorities, 
by  uhich  the  bond>  were  t-  be  nominally  assigned  t  .  the 
^uiie    and  the  Slate  was  to  l.rin-  >uit  fur  the  sum>  due. 
The  whole  benefit,   rik^,  and  coM.  m"  the  proceedings 
were  to  \>c  bo.rne  bv  the  lumdholders  m  spite  ot  the  as- 
signment.    Up -n  the-e  fact>  the  Court  had  no  dit^ficulty 
iiUinding  that  the  assignment  was  merely  colourable,  that 
the  real  title  remained  in  the  bond.hnlders,  and  that  the 
.•nils    were    m    Mib^tance    brouglu    in    defiance     ot    the 
Amendment.  _     . 

ddii-,  case  may  be  cominired  widi  a  somewhat  similar 
one  of  Si'itlh  Dakota  v.  Xorth  Carolina:  decided  in  1904. 
In  this  case  the  lumdholders  made  a  free  -ift  oi  their 
l„,nds  to  S(.ulh  nakut.-i.  and  re-erved  t..  themselves  no 
kind  of  ri-lu  or  interest  in  any  proceeding.-,  that  might 
sub^ecpieiilK-  be  taken.  The  gifts  were  of  course  made 
with  the  object  of  enabling  the  State  to  sue  upon  the 
bond<  and  the  d- nor^  expre>.e;l  a  wi-h  that  the  proceeds 
mi-ht  be  dev..ted  to  State  charities.  North  Carolina 
strenu-  usly  argued  that  thi<  ca.e  came  within  the  prm- 

»  loS  U.  S.,  76. 

2  19.2  U.  S.,  286.    See  pp.  63,  58,  post. 


\ 


22  AMKKICAX  SUPRF.MK  COURT 

ciple  >a-  the  carlKT  decision,  an.l  so  idl  Nvithin  ihe  pro- 
hibitinn  c,t  the  I'lcv.nth  Amc.ulment.  The  majority  of 
the  Cuun.  however.  h.M  that  neither  th.  motive  prompt- 
hi-r  the  action  m,r  the  status  oi  the  .lunor  altecte.  the 
vahditv  .-t  the  Kitt.  >-  l'>',-  a>  title  .genuinely  pas.ed.  A 
"contnner>v  )>otween  States"  having  arisen,  thejun.- 
dictinn  of  the  Supreme  Court  to  decide  it  wa.  attirmed 
and  a  decree  (,f  foreclosure  was  accordingly  made  against 
North  Car.ilina. 

The  juri-diction  of  the  Court  to  .leternnne  l.oundar> 
disputes  having-  been   hnnly  estabh>hed.   we   may   pass 
over  a  <erics  of  boundarv  cases  in  which  un  objecti-n  to 
the  jurisdiction  v,a.  raided  by  either  party.     A  new  prob- 
lem was.  however,  presented  by  the  case  of  Loiiuiana  v. 
Tcvas  '  which  came  before  tb.e  Cairt  in  looo.    The  com- 
plaint in  this  ca^e  wa^  tliat  the  (luarantme  laws  ot  1  exas. 
instead  of  bein^^  honestly  aimed  at  the  protection  ot  the 
public  heahh.  were  m  ve;dit)  aimed  at  diverting?  prohtable 
trade  from  the  port  oi  Xew  Orleans  in  Louisiana  to  the 
port  ,.f  Calveston  in  Texas.     A  c  mi-lete  en.,>argo  had 
been  placed  up-  u  all   traffic  enteriii-  Texas   trom  New 
Or'.ns.  rdth'.utih  the  medical  reasons  were  quite  insut- 
ficient  to   justifv   such   strin^a.nt   ac.  This,   it   was 

claimed  bv  Louisiana,  was  an  attempt  l^y  1  exas  to  regu- 
late inter-State  c  mmerce,  a  right  reserved  under  the 
Constitution  to  the  United  Stato. 

The  Court,  h^  .wever.  refused  to  enleriam  the  >uit.  t  He 
main  reason  given  for  this  decision  was  that  the  c>:ntro- 
versv  was  lu.t  one  "between  State^,-  but  was  .eaily  an 
attempt  to  .ue  Texas  for  an  injury  >uttered  by  certain 
commercial  firms  of  New  Orlean.  The  Court  declined 
to  accept  the  view  that  L.aii-iana  was  entitled  f.  sue  as 
"^nvi.s-  patriir.  trustee,  guardian,  or  representative  ot 
all  her  citizen.."     The  technical  gromid  was  aUo  taken 


1  176  U.  S.,  I. 


RXTKXT  OF  Tin-    jrUlSDKTIoX  ^^ 

thai    rcxa.  ha.l   imt   ~u   ;ar   a^h^.tol   ..r  auilv.n.ca   the 
actinn  -f  iKT  health  officer  a.  m  make  it  her  <.wii  State 

action.  . 

A  pnivcrh  tells  u>  th;'t  it  i>  the  (hity  ui  a  U'""l  1"''-^' 
t<.  enlar-e  hi>  juris.lictimi.  ami  the  .leciMmi  ot  the 
Suiiivnu-  (  -urt  ni  thi^  ca-e  does  imt  >eem  ea^v  in  recon- 
cile uith  the  Mi-inciple.  which  had  huherlM  -ui-led  it. 
ruling>.  The'oinnic.n  \Na>  not  that  oi  an  unanmiour. 
Cuurt  Tuu  jn(lKc>  v.h,  concurred  in  the  result  .hd  so 
lor  differeni  reasons,  uhile  Mr.  ju^ti-e  llrown,  though 
cuncurrini:  on  technical  -rounds,  maintained  ^troii^ly 
the  ri-ht  and  duty  of  a  Slate  to  protect  its  individual 
citizens  again-t  foreign  oppression. 

"  In  view,"  he  said,  "'  of  the  solicitude  which  from 
time   immemorial    States   have   manifested    for   the 
interest  of  their  own  citizens;  of  the  tact  that  wars 
arc   frequentlv   waged  hv   Stato  m   vindication  ot 
individual  rights,  of  which  the  last  war  with  Eng- 
land   the  opium  uar  of   1S40  between  ( .reat  Britain 
and  China,  and  the  war  which  is  now  being  carrie.l 
oil  in  South  .\frica  between  Great  Britain  and  the 
Transvaal  Republic,  are  all  notable  examples;  ot  the 
further   fact  that  treaties  are  entered  into   tor  the 
protection   of   in.lividual   rights,   that    international 
tribunals   are   constantly   being  established    t-^r   the 
settlement  of  rights  ,,f  private  parties.. t  would  seem 
a  stran-c  anomalv  if  a  State  of  thi>  Lnion,  which  is 
prohibi'ted   bv   the   Constitution    fr,.m   levying^  war 
Lpon  another  State,  c^.uld  not  invoke  the  authon 
of  this  Court  bv  suit  to  rai.^e  an  emljargo  which  had 
been  established  bv  another  State  against  its  citizen> 
and  their  property.     An  embargo,  though  not  an  act 
,,f  war  is  frequentlv  resorted  to  as  prehmmar;,  to  a 
declaraW.n  of  war,  and  may  be  treated  undc.cer.am 
circumstances  as  a  sufficient  casus  bclh.     ^  ^^^  c^  ^ 
,na.le  bv  the  bill  is  the  extreme  one  ot  a  total  so 

a  ;  oi  all  commerce  between  the  most  importan 
i;kv  in  Louisiana  an  1  the  emire  State  ot  Texas;  and 


24  AMF.RirAX   SUl'KliMK  COURT 

while  I  lullv  agree  that  resort  cannot  be  hail  to  this 
Court  to  vindicate  the  rights  of  individual  citizens, 
or  any  particular  number  of  individuals,  where  a 
Sate  has  presumed  to  prohibit  all  kind>  of  com- 
merce with  the  chief  city  of  another  State.  1  thmk 
her  motive  for  doing  so  is  the  jiruper  ^uliject  ot 
j'ulicial  inquiry."  ' 

Whichever  view  \:  taken,  the  principle  involved  is  ob- 
viouslv  of  international  importance.  It  is  possible  that 
the  mojoritv  of  the  judges  were  not  entirely  ciinfident  of 
the  soundness  of  their  decision,  for  a  judgment  pro- 
nounced in  a  somewhat  similar  case  only  two  years  later 
seems  to  re>t  u])on  different  and  firmer  ground. 

The  ca>e  of  Kansas  v.  Colorado;'  decided  in  1902.  arose 
out  of  a  complaint  by  Kansas  that  Colorado  was  wrong- 
fully diverting  the  waters  of  the  Arkansas  River,  which 
flowed  through  the  territory  of  both  States.  The  object 
of  the  diversion  was  to  irrigate  the  dry  land^  of  Colorado, 
but  thi>  had  the  result,  so  it  was  claimed,  of  impairing 
the  fertility  of  Kansas.  Colorado  denied  the  jurisdiction 
on  the  ground,  successfully  maintained  by  Texas  in  the 
earlier  case,  that  the  suit  was  really  brought  t.  <  protect 
the  interests  of  private  landowners  in  the  State  of 
Kansas.  The  plaintiff  State  presented  her  claim  both  as 
an  individual  landowner,  and  on  Ix-half  of  her  citizens 
atTected  bv  the  diversion  of  the  stream.  The  Court, 
\vithout  attempting  to  distinguish  the  earlier  case,  held 
that  the  facts  alleged  presented  a  "controversy  between 
States  "  suitable  for  determination  by  the  Supri-mc  C.  urt, 
and  consequently  aftirme<l  the  juri.sdiction. 

The  ordinary  layman  would  no  doubt  consider  that  of 
these  two  cases  Louisiana  v.  Tiwas  presented  the  stronger 
reasons  for  the  intervention  of  the  Supreme  Court.     In 


'  176  U.  S„  37. 

•185  U.  S..  ii5.    See  p.  81.  post. 


I 


5 


EXTENT  OF  THE  JURISDICTION  25 

Kansas  v.  Colorado  there  was  at  the  most  a  legitimate 
conflict  of  interests  between  two  riparian  proprietors  as 
to  the  use  of  a  flowinf^  stream — a  kind  of  dispute  with 
which  the  courts  are  familiar  in  ordinary  life.    There  was 
no  NUggestion  that  the  .atiun  of  Colorado  was  inspired 
by  any  hostility  towards  Kansas.    But  in  the  earlier  case, 
if  the  plaintiff's  statement  proved  to  be  correct,  the  policy 
of  Te.xas  was  actuated  by  a  desire  to  destroy,  under  the 
pretext    n  (piarantine  laws,  the  entire  c.nnierce  of  Xew 
Orleans.      This  is   the  kind   of   action   which   in   inter- 
national affairs  leads  to  war;  and  since  the  main  object 
of  an  international  Court  is  tlie  prevention  of  war,  it 
seems  difficult  to  understand  why   the   Supreme  Court 
refused  even  to  investigate  Louisiana's  eimplaint.     '1  he 
injury  complained  of  in  the  later  case,  as  in  the  earlier, 
was  purely  to  projirietary  rights,  and  the  judgment  of  the 
Court  does  not  seem  tn  have  turned  upon  tlie  fact  th.al  a 
small  piece  of  the  lan<l  involved  was  owned  liy  the  State 
of  Kansas  itself. 

The  real  explanation  of  Kansas  v.  Colorado  is  to  be 
found  in  the  intervening  case  of  Missouri  v.  Illinois,^ 
decided  in  it><:)i.  llie  complaint  of  Missouri  in  this 
action  was  that  Illinois  was  polluting  the  Mississippi  by 
lii.scharging  crude  sewage  into  it  through  the  Illinois 
River,  ami  thus  injuring  the  health  of  the  people  of  Mis- 
souri. Illinois,  like  Texas,  demurred  to  the  jurisdiction 
on  the  ground  that  the  interests  of  indiviihials  only  were 
affected  and  that  the  nuestion  did  not  concern  Missouri 
as  a  State. 

Tlie  C  .nrt.  liowever.  aftirnied  its  jurisdiction  to  hear 
the  case.  .\ir.  Justice  Shiras.  who  delivere<l  the  juilg- 
ment  of  the  majority,  naturally  felt  the  embarrassment 
ciused  by  the  Louisiana  decision,  and  laboriously  en- 
d.-avourcd   to  distinguish   it   from   the  case  l)efore  him 

»  180  U.  S,.  n«.    See  p.  ;■>,  tost. 


26  AMFRICAX  SlTRrMF.  COURT 

His  simicwhat  elaborate  explanation  may  in-  ilm-  -^"ni- 
marised  in  his  nun  word;- : 

"The  fiiuri  [in  l.ouisiana  v.  7V.i-a,vJ  did  nnt  de- 
cline jurisdiction.  Init  exercised  it  in  hcildin^^  that  the 
facts  allet;ed  in  the  hill  tlid  not  justify  the  Court  ni 
j,rrantin^r  tlie  relief  prayed  for."  ' 

This  is  Ijv  no  means  easy  to  rec(nK-ile  with  tiie  actual 
lauKua^e  of  the  Court  in  the  earlier  ca~e,  hut  it  is  scarcely 
wortli  uhi!c  aiialvMii-  the  matter  too  closely  from  the 
point  of  view  of'  le-al  consistency.  What  really  hap- 
pened was  that  the  judges  changed  their  minds,  and  took 
a  broader  view  .d'  the  extent  of  their  own  jurisdiction. 
It  mav  be  remarked  tliat  Cliief  Justice  Fuller  and  two 
other  judges  dissented  from  the  decision  in  Missouri  v. 
lUinois,  holding  that  no  "controversy  between  States" 
was  presented.  In  Kansas  v.  Colorado  the  judgment  was 
unanimous,  and  it  is  evident  that  the  s(jund  reasoning  of 
Mr.  Justice  Brown  in  Louisiana  v.  Texas  had  gradually 
won  its  way  to  general  acceptance. 

It  will  be  observed  that  by  K/J-'  the  Court  had  thrown 
over  all  remnants  of  the  timidity  with  which  by  a  ma- 
jority it  had  ventured  to  assume  jurisdiction  of  a  iKum- 
dary  case  in  iS.vH.  At  the  present  day  it  is  probably  true 
to  say  that  there  is  no  genuine  disi)Ute  between  two  States 
whicii  the  Court  is  not  prepared  to  decide,  it'  the  facts  are 
presented  to  it  in  proper  form. 

A  half-hearted  attempt  to  challenge  the  jurisdiction 
was  made  in  i()of).  when  Louisiana  tiled  a  l)il!  against 
Mississippi'  to  determine  tlie  boundary  uiibm  uhich 
each  State  might  regulate  the  fisheries  in  an  arm  ot  the 
sea  called  Mississippi  Sound.  The  objection  raised  by 
Mississippi  came  sixty  years  too  late,  and  was  easily 
overruled.  It  is,  however,  worth  remarking  thai,  ulieii 
» iSo  U.  S..  240.  saoaU.  S„i.    Set  p.  47.  l>ost. 


EXTENT  OF  THF.  JURISDICTION  27 

the  dispute  amsc,  cacli  party  organised  armed  patrols  to 
enforce  its  rij^hts,  and  an  armed  contlict  was  really  only 
averted  bv  the  '-onfidence  wiiich  each  of  the  disputants 
felt  in  the  .Su,,.eme  Court. 

Tlu-re  remam■^  to  lie  e< 'H-^iikred  only  one  case  of  a  dis- 
pute between  States  in  which  the  jurisdiction  of  the  Court 
was  ayain  cpiestioned.  Thi-  l^  the  <:jreat  case  of  /  'iryinia 
V.  West  riryiuia.'  which  in  its  various  a.-pects  has  en- 
gaged the  attention  of  the  Supreme  Court  repeatedly  since 
igo(). 

Like  the  earlier  case  between  the  same  parties,  to  which 
reference  has  already  been  made,"'  ilii--  •li'^inite  arose  out 
of  the  separation  of  West  Virginia  from  the  parent  Stale 
during  the  Civil  War.  The  \\  heeling  Convention  of 
i86i,  which  organised  the  separation,  undertook  that  the 
new  State  should  assume  a  just  proportion  of  the  puiilic 
debt  of  Virginia  contracted  prior  to  the  1st  January, 
1861.  This  undertaking  was  re()eated  in  the  Constitu- 
tion of  West  \  irginia,  where  it  was  coupled  with  a 
promise  that  the  legislature  should  ascertain  the  amount 
of  the  debt  "  as  soon  as  may  be  practicable."  and  provide 
for  its  discharge.  The  substance  of  \'irginia's  case  is 
thus  stateil  h\  (  hief   |ii-tiee  I'uIIer  : 


"  I''runi  iS''3  t.'  !<j(i5  various  efforts  were  maile 
li\  \irgini.i  thr.uigh  it^  constituted  authoruies  to 
effect  an  adjustment  and  settlement  with  We~i  Vir- 
ginia for  an  equitable  priji'  iti.'H  oi  the  public  debt 
of  the  undivided  State,  proper  to  lie  Ixirne  and  paid 
by  West  Virginia,  i)Ut  all  these  efforts  proved  un- 
av.nling,  and  it  is  charged  that  West  \irginia  re- 
fnsrd  ,,r  failed  to  take  any  action  or  do  anything  for 
the  purjiose  of  bringing  about  a  settlement  or  ad- 
justment with  X'irgini.i.  The  original  jurisdiction 
of  this  C"ourf  was  tl.ereli>re  inv  ked  b\    X'ti'dnia  to 

'  J06  r.  S.,  j(/>.    See  pi>.  6;,  w.  piisl. 
*  II  Wallace,  .v).    Ante.  p.  iq. 


28 


AMERICAN-  SUPi-  :MK  COURT 
.urea  decree   -r  an  a.o.unnnpis  betweaj  tin. 
uvo  States,  and.  in  .,rder  to  a  lu     and  ^■'"'-^    fjl 
;";nKnt  of  the  accounts,  the  adju-l^catjon  and  jkte  - 
mination  of  the  amount  cUie  \  ir^nnia  by  Wc.t  \  ir 
ginia  in  the  premises."  ' 
In  denmrnn^  to  U,e  jur>>aicu,..  \Ve^t_Vn-,inia  main- 
tau.ed  that  the  facts  alleged  ,i,d  not  constuute  a     contro- 
ver.v  between  States"  in  the  sense  contemplated  bv  th 
Consthution;  that  there  was  no  means  ojen.orcmg 

tlnal  decree  for  the  .un  due;  and  that  the  provw,  m 
her  Constitution.  >anct..,ned  by  Congress,  for  asec  tam- 
i„,  the  amount  of  the  del.  bv  the  action  other    e,.- 

Uuure  took   the  nuUter   out   of   the   jrr.sd.ct.on   ot   the 

Sunreme  Court. 
I  view  of  the  recorded  dec,su.ns  of  the  Court  ,t  wa. 

impossible  to  expcc.  that  .uch  co.itenttons  shouUl  prcvat  . 
an.Vthev  were  decisively  rejected  by  att  unanunou.  Cou.\; 
With  regard  to  the  ciuestion  of  enforcmg  the  decree  C  net 
,u.ticeFuller  .aKl"thatitisnottobeiresu,redon 

ilcmurrer  .b:„  West  Virginia  would  retuse  to  ^'■^".     '^"^ 
tin.  decree  of  th..  Court."  -'  though  the  C  -urt  m.gh    have 
t„  consi.ler  the  course  to  be  adopted  in  the  event  ot  such 
an  unpleasant  emergency  actually  arising.     1  his  decision 
,va>  rendered  in  ..,07,  :md  tlie  judges  who  gave  it  doubt- 
less felt  perfectly  contulent  that  any  decree  which  they 
might  make  would  Ik-  unhesitatingly  obeyed  by  any  Slate 
,n, he  Union.     Cnfortuuatelv  the~e  Iv.pe.  have  n..t  been 
realised.      .\    hnal   decree    t^.r   a   large   >um   was   made 
against  West  Virginia  in  June.  ....5.  '-"t  for  lu^arly  tour 
vears  all  attempts  to  obtain  payment  have  tailed,  and  1 
deemed  likelv  that  the  Sui.reine  Curt   waild  be   laced 
sv„h  the  chief  ditV.cultv  tliat  must  always  confront  any 
international  court,  the  ditV.cultv  of  enforcing  compliance 
uith  its  own  judgment.     At  the  time  of  writing,  how- 


EXTENT  OF  THE  JURISDICTKW' 


ever,  It  i^  uratitviii.i;  tr,  knc^w  thai  \vi-(T  cnun-ols  liavc 
prevailed,  and  provision  is  now  (  1919)  being  made  hy 
the  West  Virginia  legislature  to  satisfy  the  deeree. 

The  only  (piestion  reniaimng  to  he  ccMisidercd  under 
the  head  of  juri^dietion  is  the  positi-n  before  the 
Sniireine  C-tirt  "f  the  I'liitcd  States  itself.  Under  the 
Constitution  '  the  jurisdiction  extends  "to  controversies 
to  which  tb.e  United  States  shall  be  a  party:  to  contro- 
versies between  tv.o  or  more  States:  .  .  ."  What  is 
the  -jxact  meamng  to  be  attached  to  these  words:' 

'i'lu-  first  case  of  suit  by  the  United  States  against  a 
State  occurred  in  1S90,  when  the  I'ederal  authorities 
brought  ar  action  of  debt  againn  North  Car^  liua  '  I'pon 
certain  unpaid  bonds  ,,f  that  State.  No  ol).iection  was 
taken  to  the  jurisdiction  in  this  case,  which  therefore 
need  not  detain  us  further.  But  two  \ears  later  the  right 
of  the  United  States  to  sue  a  State  was  str-mgly.  though 
unsuccessfully,  challen-ed  b\  the  State  of  Texas. 

The  bill  in  thi^  ca>e  was  tiled  to  determine  whether 
a  certain  area  ^'t  country  formed  part  of  the  State  of 
Texas  or  of  the  I'ederal  territory  of  Oklahoma.  The 
case  turned  m:\inly  up' n  the  term-  of  -evera!  treaties  and 
upon  a  great  deal  of  geograj)hic;d  eviilence.  such  as  the 
value  of  various  niajjs  and  surveys.  '1  e\as  not  only 
denied  the  Federal  title  to  tb.e  bind,  but  aN  >  denied  the 
jurisdiction  Mf  the  Sni)reme  t  ourt  to  lK;ir  the  ca~e. 

Her  argument  ran  a>  follows:  .\  sovereign  State  can 
only  be  sued  bv  its  own  consent,  and  the  only  consent  is 
that  to  be  found  in  the  term-  of  the  Constitution.  The 
consent  given  there  can  onl>  be  read  as  ;i  consent  t^'  s'Ut 
by  other  St;ites.  I'.xpress  consent  would  lie  reipiired  to 
a  suit  by  the  United  States,  for  this  would  not  be  a  suit 
l)etween   ecjuals.   since  the    l-ederal   Government   would 

•  Set'  p.  7,  i))i/r 

-  13(1  I'.  S..  Jii.     Sec  p   M.  i'oii. 

»  143  L'.  S.,  (i-'i.    Sec  p.  44.  foit. 


30  XMI'IKICAN   Sll'Kl-.M!:  C(^VRT 

have  the  a.lvanta^a^  in  a  Federal  Curt.  It  w.s  furthor 
sai.l  that  tlie  .luestion  v>as  political,  imt  judicial,  m  it> 
nature,  and  certain  nhjectirms  of  a  teohiiKal  kind  were 
also  rai'.ed  Historicallv  there  was  fjood  support  t.  r  thi^ 
ar.'ument  in  the  fact  that  at  the  Philadelplia  r-onvcnt,.-n 
proposals  for  expressly  givins  the  Court  junMlu-t.ai  in 
controversies  1-etween  the  United  State,  and  a  Mate  had 
l,een  deliheratelv  rejected  hv  the  delegates. 

The  majority  of  the  L.urt.  in  rejecting  the  lexan 
claim.  relie<l  mainly  upon  the  words  of  the  Constitution 
which  give  the  Court  juriMlictMU  "in  (///ca<es  .  .  .  m 
which  a  Stat.^  shall  he  a  party."  But  they  were  also  im- 
pressed l>v  what  mav  he  called  the  practical  argument, 
that  it  jurisdiction  were  refused,  the  only  alternatives 
would  be  to  settle  the  dispute  either  by  agreement,  of 
uhich  there  was  no  prospect,  (-r  l.y  suit  in  a  Texan  Court 
with  the  c.nis'-nt  of  Texas,  or  in  the  last  resort  hy  war. 

The  juris.liction  was  accordingly  aftirme<l.  h  is  per- 
haps questionable  whether  such  a  <leci>ion  would  have 
entirelv  pleased  the  men  of  17S7.  but  its  practical  con- 
venience and  g.KHl  sense  in  the  twentieth  centurv  cannot 
be  disputed.  "It  would  be  .lifticult."  said  .Mr.  Justice 
Harlan  for  the  majoritv  of  the  Court,  "to  suggest  any 
reason  whv  tln^  <,  ourt  shouUl  luue  jurisdiction  to  deter- 
mine  (piestions  of  boundary  between  two  or  more  States, 
but  not  juri.^diction  of  controversies  n{  like  character  be- 
tween the  Cnited  States  and  a  State."  * 

It  should  he  added  tli.it  Chief  jn-tice  Iniller  and  Mr. 
Justice  Lamar  dissented  fn-m  thi>  deci>ion. 

It  iH^ing  clearlv  establishe.l  that  the  Unite.l  .state-  caild 
sue  a  State  of  the  Union  in  the  Supreme  Curt,  the  ques- 
tion  has  arisen  whether  the  converse  also  holds  good, 
enabling  a  State  to  bring  the  Unite.l  States  to  the  bar  of 
the  Court  as  an  unwilling  .lefen.lant.     This  problem  was 

1  u.?   L".   S..  645. 


i.:\ri-:x'i-  of  nil':  ji  uisdiction       .v 

first  proriiti'il  l>v  till.'  casi'  of  Kansas  v.  I'liitrd  States,' 
decided  in  Kjoj-  I'lf  (li->|nitc  Cdiu'cnud  the  MwiiiT^-hip 
(if  crrtain  land-  which  ha<i  hccn  -ranted  by  Federal 
statute  for  tlie  jiurpiK-c  nf  railroad  ci instruction.  Coim- 
>ei  for  the  L'nited  States  demurred  to  the  jurisdiction, 
jiartlv  on  the  ,q:ronnd  that  Kansas  \va>  onl>  a  iionnnal 
jiartv.  and  partly  ■  n  the  .L;rnun.l  thai  the  United  Stales 
!ia<l  not  consented  to  be  sued.  With  ref,^ard  t(j  the  latter 
point  the  (juestion  of  jurisdiction  is  not  altoi^ether  clear. 
In  an  earlier  case.  referre<l  lo  in  the  opinion  of  the  Court, 
Mr.  Jusiiee  iJrewer  had  >aid  : 

■'  'Idle  >iience  of  enunsel  does  not  waive  the  (jues- 
tion.  nor  \v<iuld  the  express  consent  of  the  parties 
f^ive  to  this  Court  a  jurisdiction  which  was  not  war- 
ranted by  the  Constitution  ami  laws.  It  is  the  duty 
of  every' court  of  its  own  motion  to  inquire  into  the 
matter  irrespective  of  the  wishes  of  the  parties,  and 
lie  careful  that  it  e.Kercises  no  powers  save  those 
conferred  bv  law.  Consent  may  waive  an  objection 
so  far  as  respects  the  per-on,  but  it  cannot  invent  a 
court  with  a  jurisdiction  \shuh  it  does  not  by  law 
possess  over  the  suliject-inatter."  " 

In  the  i.re-ent  ca-e  the  C  airt  dismissed  the  bill  for 
want  of  jurisdiction'  on  the  ground  that  ihe  Lnited 
State^  had  not  consented  to  be  sued.  Thi-  decision  is  not 
quite  easy  to  reconcile  with  the  ilictitiii  ju-t  quoted  that 
even  consent  cannot  confer  a  jurisdiction  which  d-e-  not 
exist.  The  distinction  drawn  bv  the  Court  would  appear 
t..  be  that  in  order  to  give  jurisdiction  the  consent  must 
be  by  statute,  either  general  or  special;  a  con.sent  -n  the 
part'uf  the  executive  .luihority  is  not  sufficient. 

Such  a  general  consent  was  given  in  1S55  by  the  Act 
nf  Congress  creating  the  Court   of   Claims,  a  tribunal 

»  .ti4  r.  S.,  M3. 

=  .l/i)iii,\t.>M  V.  Ilitihcock.  18;  U.  S..  38;. 

8204  U.  S.,  331. 


32  AMF.RTCW  ?i;r'RF.Ml'    ^'nl-Kr 

formed  to  enable  contractual  and  ^innlar  clain>  a^'anW 
:;;:ti:;  State,  to  resettled,.  .n«.^^^^^^ 

executive..rlcL,M<lativ.>anthonty.     l.ct.atthi^    i 
execuu\<r  r>  .■    .      ,-   ,ii,.  ,1,, -trine  of   siivcr- 

frovernmcnts  the  Icai^t  amenable  t. .  the  lau . 

^     n   ".land  the  Cmwn  ,^  nonmuUy  exempt  tv.m  ^u,t 

e."        vL.wn  c,..emj.ut  in  practice  the  rv,,cedur 

chmUn..    the  Crown  to  be  prosecuted  with  the  sam 

rt    ntv  of  judicial  treatment  as  obtains  in  a  suU  between 

S  "^part^.    Since  the  Amencan  Constitution  was  de- 

pruatepari.  ,,.,if     nhri-^e    "  a  iiovernment  of 

signed  to  be,  m   Marshall  phra>c.      a  , 

als   and  not  of  men,-  it  is  perhap.  remarkable  that  so 

,n!\  time  wa<  suffered  to  elapse  before  anv  C.ective 

^  ?  ■   „v,vided   a.nun<t   the   failure   ..f   executive 

remedv   was  iirnMato   a^du.-i 

•u,lh..ritie.tn  meet  their  oblit;ations. 
"  Th     statmes  constituting  the  Cou-t  did  not  exp^ss^ 
provide   for  the  case  of  claims  by  a   State  agamM     he 
F  de  L  f.overnment.  and  the  jurisdiction  ot  the  Lourt  to 
^:^^.ch  suits  was  -lisputed  by  the  United  States  .hen 

he    q,u.sti..n    rn.t    an.o    up-n    a    claim    pre.  > 

L„„ina  m   iSS;.'     The  jurisdiction  was,  h.uxvcr- 

r,nned  unon  appeal  bv  the  Supreme  C  ..uvt,  and  has  Miue 

1  ..-..r.MvPil  ••■  several  >imilar  cases. 

^'^' W:  Wllle^dv  noticed  m  passing  the  ca.  of  ..../. 
V     L--,;/a.^  where  the  Court  permitted  the  Unite,    S  a  e. 
ointe,-eneinaboundarvdispmeU.,weentw.,States 

he  ground  that  b-e-ln  :d  grants  we,e  m  ,uestK,n  and    la 
L  United  States  had  a  legitimate  nuercst  ui  seemg  that 

M23U.S..32.  ^  ,;  llowanl,  478,    .ln„-,p.  .8- 


i-.xi-i'.X'i  <  H'-  i'lii".  jrKisDi*  Tiox 


i,ncr-Statc!i"un<laiic,s\\crfc..rmnly  drawn.  In  ilii-CMn- 
ncctinn  it  nny  \k-  ad.Ud  tliat  in  iqo;  the  Tniu'il  Stales 
a^rain  ^^ous^'lu  tu  intervene  l)el\\een  twn  Siale>  ni  tlie 
second  i)ha'^c  nf  tlie  ca-e  "t  /x.n/.vj.v  v.  Colorado:  where 
Kan'-as  e..ni])lanie(l  Mt  the  (liver^uu  hy  (.jjlorado  ol  the 
uater.  nt  the  Arkansa.-  Kiver.  lUu  m  thi-  ease  the 
jnterventinn  uas  (HsalLANe-l  hy  the  (  ,4irt  n,i  the  ^r-'und 
that  the  suhject-niatter  "!'  the  (H-imte  was  n^t  imc  oi 
those  which  the  Cnnstituii.m  had  e.^nniiitted  tu  the  care 
of  the  Federal  (■..iverniiient.  Tlie  L'mted  States  has 
authority  to  re-ulate  navi-ahle  water>,  i)nt  the  diversion 
complained  of  did  not  affect  the  -treani  in  its  navigable 

piirtidii. 

It  is  clear  from  the  deei>i-n  in  thi-  ca>e  that  any  claim 
of  the  United  States  to  intervene  in  a  (lisi)ute  hetween  two 
States  will  lic  somewhat  jealously  regarded  by  the 
Supreme  Comi. 

>  206  U.  S.,  4(3.    See  p.  82.  tost- 


P    434? 


ClIArTl-.l^   111 
BOUNI>\UV  (ASF'S 

and  many  '--    '  ^  7,  "^  ,^„„^,,,,,  i,  ,1k  sencra! 
b„„ndar,e,.     l'>"  «■  .^  '"„,    „,^,    „„„„,,rical    ivntKr. 

,n    nrl.itrarv    sirai.dU   line.   an<l    ...me   ot    tlu    utter 

From   thi^   it    will   be   -ecn   uui  - 

.      .•  f,„,rt  :^  calk'f    upon  t<i  SMlve  (litter 

%  "■h^■a  -.rl-.-  not  ir.m.  a„y  miccrla.ray  as  ."  tic 
?''"'e,f  river  „r  ,l,c  accuracy  ,.(  a  «,rvcy  1«  ,n 
\  <l:.«,.  .,rau-ic  ,.r  cc.,i.oi,.ic  rc,,uir™,c.„«.  a.,.l 

r::S;!«:;;:^*::'„?..ivcr.e„oHa.io,..    .nA,..„ca 

34 


J 


ROUXDAKV  CASI-S 


35 


the  intcr-Statc  Ixaiiulary   disputos.   altlMu.ch   tlu-y   have 
nccasidiiallv   armiM-d    strung    feehng,    have    never   since 
Revohitionary  times  hccn  based  upon  any  serious  conflict 
of  policy  or  ideals.'     in  --uljstance  they  have  for  tlie  mcst 
part  been  exactly  like  (lis])Utes  i)ct\veen  adjoining  land- 
Muiier-  in  the  dnlinary  courts.     (  »t  tiie  cases  noted  in  thi^ 
chapter  only  one,  that  df   Virginia  v.   West   I'irginui  in 
tS/O,-'  had  its  origin  in  a  real  political  ([uarrel.  and  even 
in  that  ea-e  the  solution  of  the  problem  in  the  Supreme 
Court  restetl  upon  tlie  purely  leg:d  ground  that  \'irL;lnia 
ha<l  given  a  valid  coUseiU  under  the  Constitution  to  the 
transfer  of  the  disi)uted  couiuies.     It  will  also  Ije  observed 
tliat  in  no  ease  ha--  the  decision  of  the  Supreme  Court 
been  intluenced  in  any  way  by  the  wishe>  ^'i  the  people  in 
the   territory   affected   by   the   deci-ion.      The   argument 
fniiu  long  posse-sion  has  always  had  great  weight  with 
the  Court,  but  neither  Court  nor  counsel  has  ever  ap- 
pealed to  the  "  right  of  self-determination."      The  Court 
is  bound  bv  the  Constitution,  and  the  (■oii'-titution  admits 
of  no  argument  upon  any  sucli  ground. 

The  first  b.  uuidary  case  to  be  settled,  in  the  Supreme 
Court  was  that  of  Rliodc  Islaiui  v.  Miissjrlnisrt's,  which, 
after  many  year.--  of  tlie  nio-^t  dilatory  proceedings  that 
can  be  imagined,  was  deciiled  in  favour  of  Massachusetts 
in  184C)."  The  (iue--tion  between  the  parties  was  whether 
a  line  drawn  in  i').}J,  and  acted  upon  i\er  since,  consti- 
tuted the  true  boundarx'  between  tiie  two  States.  Rhode 
Island  contended  that  the  line  as  drawn  did  not  carry  out 
the  directions  of  the  coh^nial  charters,  and  that  although 
out  of  possession  for  over  two  centuries  ^he  liad  done 
nothing  tei  forfeit  her  claim.     Massachusetts  denied  the 

'  I~.Mii  parallels  of  latitude  arc  capable  of  nrousing  passion. 
When  the  (iiRstion  of  tin-  Canada-Oresiin  boiimlary  came  up 
in  184!)  a  pupnlar  war-cry  of  the  Democratic  party  was  "  Fifty- 
four  forty  or  tight !  " 

•■  11    Wallace.  ,19. 

''4  Howard,  591. 


36  AMKKICAX   SLTR1:MF.  COrRT 

plaintiffs  cnstruction  of  the  charters.  aii<l  rcli.-(l  tip'Vi 
tlif  fact  that  the  existing  Hue  had  been  settled  by  aj^rec- 
mcnt  between  the  two  colonic^  in  1718:  in  a.bbtion  she 
pleaded  Innj;  possession  and  the  neglect  of  I'lin.lc  l^and 
to  assert  licr  claims  in  f^ood  time.  Khndr  Idand  a<hnittcd 
the  ai^rccnienl  m  171s.  bin  i.Ka.lcd  that  she  had  accepted 
it  under  a  mi'-takc. 

The  Cnurt  luld  that  tlic  fact  .'f  any  mistake  had  n-t 
been  i!P.ved,  and  that  lxh-<le  Island  was  bound  by  the 
at^reement  of  IJ^A  I'.ut  the  .leci-^i.-n  in  favour  of  Massa- 
chusetts rested  mainly  on  the  argument  from  long  and 
undisturbed  possession. 

'•  More  than  two  centuries  have  passed,"  said  Mr. 
Justice  McLean  for  the  Court.  "  since  Massachusetts 
claimed  and  took  possession  of  the  territory  up  to 
the  line  established  bv  Woodward  and  Satlrey.     1  his 
possession  has  ever 'since  been  stcadilv  mamtamed, 
under  an  a-^sertion  of  right.     It  wmld  be  diltunilt  to 
disturb  a  claim  t!:-  ^  sanctioned  by  time,  however  im- 
pounded it  mav  nave  been  111  its  ongm.    .     .    •    I'or 
the  securitv  of  rights,  whether  ot    States  or  indi- 
viduals,  long  i)o.^e.si...n   under   a   claim   of   title   is 
protected      And  there  i-^  no  c.mtn.versv   in  which 
his  great   principle  may  be  involved  with   greater 
iustia-   and  propriety   than   m   a   ca^e   ot    disputed 
i)uundary."  * 

The  next  ca^e  m  order  of  time  i^  that  ,.f  .l//...^..><n  V. 
Jozi'a  which  came  bef.^re  the  ( ^  urt  by  eminent  nt  both 
States  and  wa~  deci.led  in  i>^v>-  thuugh  the  c,,n-equen- 
iial  proceedings  did  not  end  until  iSw;.'  -lii.'  'l»P"te 
turned  upon  the  true  location  uf  an  artifcul  bmndarv 
lai.l  down  bv  Congress  when  it  admitted  .Mi-^atri  t^  the 
Union  in  ,S.r,  and  the  fa.  t~  are  ,d  bttle  interest  t,.  any 
Ini,     .urvevor.     The    pn-cdnre    ad-pted    i^.    hnwever, 

^i6s  C.  S..  118. 


1  4  Howard,  f^r^-n. 


How.in!.  <i<io. 


1 


BOUXn ARV  CASES 


37 


wi  '  .hy  <ii  notice,  since  it  l)ec;nne  the  re^^ular  practice  of 
tlie  Court  ill  similar  cases.  The  Court  after  hearing  the 
evidence  and  arguments  decides  v.pni  the  general  line  to 
be  fulKiwed.  Commissioners  are  then  appointed  to  sur- 
vev  the  actual  line  upon  the  ground,  and  to  mark  it  with 
suuaiile  nioiiunK'nt<.  'i  1k'_\  are  directed  to  make  a  rej)urt 
to  the  Supreme  Court  iiy  a  certain  date,  and  the  States 
have  the  opportunity  of  expressing  their  views  upon  the 
report  thus  jjre^ented.  If  no  objection  is  made  or  sus- 
tained, the  C' mini---ioner-'  re])ort  is  eonl'irmed  by  the 
Court,  and  the  line  thus  surveyed  and  marked  becomes 
the  final  boundary  between  the  States  Tiie  whole  costs 
ut  the  survey  are  to  be  shared  eijually  by  the  parties. 

Florida  v.  Gconjia  (1834)  '  ha>  lieen  already  noted 
with  regard  to  the  claim  made  by  the  United  States  to 
intervene  in  the  argument,  and  is  not  (jtherwise  of  general 
interest.  The  next  case,  that  of  Alabama  v.  Georgia  in 
1859,-  was  a  dispute  about  a  river  liuundary,  but  the  point 
involved  was  a  small  one.  The  boundary  was  defined  in 
i8o_'  b\  an  agreement  l>elween  the  United  States  and 
Georgia  in  the  following  words: 

"  West  of  a  line  begimiing  on  the  western  bank  of 
the  Chattahonchee  River,  where  the  same  crosses  the 
botui(lar\  between  the  L'nited  States  and  Sjiain,  run- 
ning up  the  saiii  river  and  along  the  western  bank 
thereof." 


Theboundarv  thus  described  afterward-  became  the  east- 
ern bounilarv  of  the  State  of  .Mal'ama,  and  the  -ole  (|ues- 
ti'in  lietween  the  itarties  now  was  whetb.er  the  wdnl 
"  bank  "  w;i-  iiie.ant  to  Ji\  the  Hue  at  the  high  or  at  the 
low  w.ater  mark  in  the  stream.  In  -eeking  for  authority 
upon  tin-  iirMblcm  tlu  ('<4irt  ranged  ■  iver  a  wale  field, 
decided    ca-es,    writing-    of    iittblici-i-.    and    dicti' diaries 


1  1;   Howard.  .(7^. 


23   Ibjward,  505. 


i 


38  AMF.KICAX  SlTRF.Ml-   CorKr 

bcine  alike  laulnn.lcro,ntnlnu,n„'      In   ,1,.  rcuU   the 

reiecl.a    and  l-cor^.a  was  given  the  hi.^i   watei   mark 
It^d™  of  such  ground  a.  is  only  c,,vcr.ll>y  exceptional 

floods.    Theexactu-rd^n-edavea.  InlloNV.: 

••  Thi.  language  impUe.  that  there  \..>^u^^^i^ 
soil  and  juri>d.etion  m  (.e,.-g.a.ntlu.  Udoue 

River  Chattahoochee,  and  that  the  bed  ot  the  luer 

hat  nortion  of  its  sod  uhuh  ,s  alternately  eoxe>e<l 

1  \-      ■    e   as  there  mav  l>e  an  increase  or  d.mniu- 
and  lett  liars.,  a>  uieii-  iiu_  ..i,;,  i,  u  ndennate  to 

f,-,..hets   of   the    wniter  -r    -l>"'it,.  .;"^ 
droughts  of  the  >unnner  or  autumn. 

U.,,,erhaps,uo.tc..nvenient  to  treat  m  this  chapter 

as  a  question  of  the  validity  o,  a  political  act.     1  Ik  tacts 
"^tl^^ase  have  been  hrietly  referred  to  ui  the  prev.Hi. 

,:^:/     The    Court    having   overruled    the   detendan 
sIXlcnurrcr^Mhejurisdieti..l.,thequest,..l    ord- 
^1  was  whether  \  irgmia  ha.l  validly  conscnte.1    o    . 

:^"er.,fthetwodispt.tedcot,ntiestotheneu    .at. 

:,        s.,, whether  Congress  had  also  given  auade,,uau 

onseut      A  niaiority  of  the  C'ourt  held  that  \  ug-ma  .   s 
Z:;;  hy   the  -action  of   the   minority   legislati.^ 
Northern  sympathies  winch  had  asse..ted.^_.ns 

-''^^-^;/'t:^'oi';:;:xr''rcrn:;; 

December,    l^'>.■^.    ^^-^^ 

.,te  them  in  a  '■'«   ''""^      ' -'  ""^'*"'"'  •^'  ,n,,  Wallace.  .W 

J  2i  Howard,  5 '4- 


BOUXD ARV  CASES 


30 


('(ins^ros  \va'^  jj:ivcn  liy  a  rr-Mluti'Hi  "i  the  idth  March, 
iS<'(),  riircc  ji;il^L>  (hs>cnted  \r<>u  tliis  dccisiuii,  and 
licld  thai  \  irj,Mnia  had  ctk'Ctively  rojicak'd  the  acts  ]iassed 
liv  the  minority  le.i^i^hiture  (kirini;-  the  war.  ,-inee  the  re- 
pealing- act  \\a-  i)a-:-ed  hef'iie  tlie  ei'ii-ent  ol  Liin<;rcss 
had  heen  oljtained. 

It  may  he  oh^erved  that  in  this  case  ihe  inhal)itant<  uf 
the  iwir  enunties  had  I)y  f<!rhiscitc  sij^nitied  their  \vi>li  U> 
lieloiiL;-  to  We^t  \irj^inia.  hnt  tlii'-  l"aet  in  n^  way  in- 
tlueneed  tlie  jud.^nienl  uf  the  v."nnrt.  I'.cnnd  a-  it  \va>  Ijy 
the  terms  dt  the  L'nn^titutiMii,  t!ie  dmrt  w^'nld  nut  liave 
been  at  hhertv  tc  eiin--id'-r  any  -ucli  ari^nment-.  Al!  it 
could  d"  \\a-  tM  ileeide  whether  all  the  eundiliun^  jire- 
Ncrihed  lui  the  erection  of  a  new  State  had  iieeii  i>roijerly 
fullilled. 

'Idle  ca>e  of  Missuitri  v.  K.-iititcky,  al>o  decided  in 
1S70,'  i-  one  of  several  boundary  dispute.-^  ari-nij;-  out 
ot  changes  in  a  river  bed.'  Idle  treat>  of  iji\^  between 
dreat  Britain,  b'rance,  and  Spain,  upon  which  maviy  of 
the  existing  State  frontiers  depend,  tixed  the  middle  of 
the  .Mi>sissippi  as  the  bocUKhiry  between  the  Briti^h  and 
the  I'rench  possessions  in  Xirtli  America.  Keu'.uck)  wa- 
admitted  to  the  I'nion  in  \j<)J,  iiein^  formed  out  of  ter- 
ritory belongiiiL;  to  \  iri^dnia.  and  the  imddK'  "i  the  .\lii- 
sissipj)i  was  made  her  we-tern  bouiidar).  .Mi-^ouri  was 
a<lmitte<l  in  iSjn.  the  >ame  bne  bein^L;  taken  ,1-  her  e.istern 
frontier.  The  di-]iule  related  1  ■  a  piece  of  land  known 
as  Wolf  Idar.d.  Kinj,^  in  the  Mi>^issipi)i  about  tuenty 
miles  liLJow  the  niouth  (d  the  <  )lno  Originallx  the  main 
stream  of  the  river  doutd  west  of  Wolf  Idand.  and  the 
eastern    or    Kentucky    ihamiel     \wi-    .  nl>     uccasionally 

'  II   Wallace,  .vj.i. 

"raM>  arisiiiK  nut  of  thf  saiiu-  cause  are  very  common  in 
the  i(,un>  III  li^itl^ll  India,  atul  have  liieu  decided  upon  sut)- 
stantially  llie  same  princiiilei*  as  liave  K"tded  the  Supreme  Court. 
The  ihvcr.siotis  (if  tlic  Kreat  Indian  rivers  are  ofun  much  more 
extensive  tlian  thcise   cliscril"'d   in   this  chapter. 


i 


40 


.\.MKKICAX  SUPRKMF-  COURT 

the    liver    gradually 

stream 

luris.liction  over  the  land  in 

111  liv    KeiUuckv 


navisahle.      In   -he  CMursc  m    inne   tne 
.hn'tea.   unnl   at   the  date  -t    the   Mi.t   tne  nu 
iluued  ea-t  -i"  the  i.land 

,,tua>  had   at   all   tln.e^  heen  e:<ere,^e> 

the    C'lnrt    unatninou>lv    <lecided    ui 


i|lie: 

Mr.  Justice  Davi-: 

-"i;;-x';;;n:l,S::::;s^:s.::irH:^ss?; 

""^'  ^7  •'  ,  .    ,        :     r  ha^  suhsecitiently  turned 

of  the  water,  chaniie  Us  cwner. 
VervM,tnlartoth,.i^theea.e„(/.,/n.MV    /v-j'-^ 

^  •       Mate   n,    ,7'.-'.   tlu-    ruer   iV^^ed   n-.th   M    th 

a  tn  du   -n  after  tiie  adnn.^Mnn  >;t 
iSlT).      .'^t    the   time   o!    -ml 
„,r,,.„„had  reduced  the  n-rthern 
,l,tc,i.  and  the  i-land  w  i-i 


,„,rih   r.i   the 
came  a 

island,  and   c^  '.itumei 
Indiana  tn   the    I'ni.  n    iti    i 
gradual  eh mue.  m  the 

.-hannel  t,,  little  ni^re  than   a  ■  ,      ,       i    ;„ 

^'^•'""^'   ■  ,„.,,^,,,     j.-n.d,eti..nnver  the  land  m 

,\    KenttK'kv. 


n,i\v  clainied  l>y 

disnute  had  always  heen  exerei-ed  ,,  ,-  ,,•  . 

The  issue  hetueen  tlu    ,ar.e.  was  really  ntte  oM.^ 

,   rr-,1  f-ict    since  the  i.tmeiple  of  law  had  been,  elearh 

;i't:tl,econcU,siont..atthenver.r,^t,a.^y^ 
,,.rth  of  (ireen  Island  it  naturallv  tnllnwed  that  tin  de 

-Sinn  was  ai^ain  in  favnur  -f  K.nttukv: 

-•  i.Vi  L'.  s.,  4r» 
1  II    Wallace,    lol- 


CIS 


BOUXDARY  CASES 


41 


'•  Her  dnmini..n  and  jurisdiction  contniue  as  they 
existed  ut  the  time  ^he  ua>  admitted  into  the  Lnion. 
unaffected  by  the  action  ol^the  force,  ot  nature  upon 
die  ctjurse  of  the  river. 

And  commentin,^^  upon  tlie  Uv^  exercise  of  jurisdiction 
by  Kentucky  the  Court  observed: 

••  It  is  a  nrinciple  ot  public  huv  universally  recog- 
nised that  IniiLi-  accpnescence  m  the  possession  ut 
Uritorv  and  in  the  exercise  ..,  dominion  and  >over- 
;:;";;>  over  it,  is  conclusive  of  the  nation  s  title  and 
rightful  authority."  " 

The  rivers  of  the  MisM-sippi  basin  are  somewhat  er- 
ratic m  their  behaviour,  and  the  next  case  that  ot 
.V.WA-.  V.  /.r.a  m  .S„./  an.e  out  ot  a  sudden  and 
violent  change  in  the  course  of  the  Mi>sour,  River.  L^ 
the  statutes  admitting  the  two  States  mto  the  ^mon  Ikk 
,.,„,„,„n  boundarv  had  been  fixed  a,^  the  middle  ot  the 
,na,n  duinncl  of  the  stream.  -  In  .S77."  to  quote  the  lan- 
guage of  the  Court,  ••  the  river  above  Omaha,  .hich  had 
purL-d  a  course  m  the  tiature  of  an  ox-bow.  suddenly  cut 
through  the  neck  of  the  bow  and  made  lor  itsell  a  new 

'^''^'.leciMon  of  the  case  was  ba^ed  upon  a  distinction 
known  to  students  ,,,  Koman  law  as  the  distinction  be- 
trtcen  ••  avulsion  "  and  "  accretion.  ' 

••  It  is  settled  law."  sai.l  Mr.  Justice  Brewer  for 

the  whole  Court.  -  that  when  grants  ot  land  borde 

„   ninning   water,  and  the  banks  are  ^-^^^'^^^-'l   .  > 

tilt  ..radual  l-rocess  k.v.wii  a^  accretion,  the  riparian 

;',eCs      omidarv    line    still    retiuins    the    stream^ 

ahottgh,  during- the  years,   by   this  accretion,  th 


ac 


tual  area  of  his  possessions  may  vary. 


It 


1  1  \(>  U,  S.,  508. 
J  ijo  U.  S..  5>o. 


■■>  143  U.  S.,  3.s<J- 
♦  14.?  U.  S..  370. 


I 


4j  AMl-.RK  AX   SUrRl'Ml".  CoL'KT 

is  cfiually  well  settled,  that  where  a  stream,  which  is 
a  Ixiundarv,  \rcn\  any  cau-e  -luldejily  ahaml'  ti>  its 
nld  :m<!  -eek>  a  new  lied,  mu'Ii  ehaii-e  ..I  ehann.el 
work-  no  chaiiiie  of  liound.iry;  and  th;''  the  honn- 
darv  remain-  as  it  wa-,  m  the  centre  of  tlie  -  ild 
channel,  altlioUt;h  no  water  ni.iy  lie  llowin--  therem. 
Tliis  -ndden  and  rajiid  ehan-e  of  channel  i-  termed 
in  the  law  avnlsion."  ' 

The  Court  was  here  aitjilyin-:  a  well-estal)li-hed  pruiciple 
which  writer-,  on  international  law  have  Iwirrowed  froin 
the  civil  law  of  i<;onie.  The  ca-e  did  not  admit  of  a 
decree  entireh  in  lavonr  of  either  partv,  -ince  lioth  ac- 
cretion and  avul-i<in  had  contributed  i-i  the  chaiii^es  in 
the  channel  of  the  Missouri  River. 

•■III..-  only  thinj,'  which  di>tiiis,niishes  thi>  river 
from  .itlier  >treain-.  in  the  matter  -if  accretion  is  in 
the  rapiditv  of  the  chaii.i;e  caused  Ijv  the  velocity  of 
the  current:  and  this  m  u^elf.  in  the  very  nature  of 
thin->,  works  no  change  in  the  jirinciples  underlyms 
the  rule  of  law  in  respect  thereto.  .  .  _  .  The  boun- 
darv  therefore  In'tween  Iowa  and  Nebraska  is  a 
var'yinu  line  m,  far  a-  affected  by  the>e  changes  of 
diniiinin-n  and  accretion  in  the  mere  wa-hing  of  the 
water-  of  the  -tream."  ' 

HavmLT  laid  down  the  principle-  of  law  applicable  to  the 
case,  the  Court  declined  to  make  any  decree,  and  sug- 
gested t(j  the  parties  that  the  line  might  now  be  fixed  by 
agreement.  This  was  accordingly  d.one.  and  a  few 
nilmths  later  tin  agreed  line  was  incorporated  in  a  .le- 
cree  of  the  Court.' 

The  case  of  In-uM  v.  IlUnvis  (  iHr;.^)  '  lumed  niioii  a 
comparatively  -mall  point.  The  boundary  between  the 
two  States  was  "the  middle  of  the  Mississippi,"  a  hue 


'  141  U.  S.,  .•<6oi. 
■-•  143  U.  S.,  .i(*i-7o. 


«I4S  U.   S..  5J9. 

*  U7  l'.  S.,  I. 


I 


BOUNDARY  CASES  43 

inherited  from  the  Franco-P.ntish  treaty  of   17^.3.     The 
river   was   spanned   hv   a  l-rid^'e   l)etv,een   the   t^wn   of 
HamiUnn  in   lov.a  and  the  tnwn  nf   Keokuk  ni   Uhnois, 
and  the  .(ue^tion   was  t.-  what   pouit   in  the  l)rulKe  the 
taxin-  powers  ol    each   State  extended.      Inwa   claimed 
that  the  matliematical  centre  ni  the  river  ua^  the  true 
huundarv.   while    llhnoi>   ar^aied    for   the  centre   ol    the 
main  navi'^ahle  channel.     The  decree  of  the  Court  was 
given  in  favour  of  lllmoi>,  a  deciM.m  supported  by  the 
consent  nf   writers  nn   international   law   and  clearly   m 
accordance   with   practical   convenience.      As  the  Court 
remarked  :  "  The  interest  of  each  State  in  the  navigation 
of  the  river  admits  of  no  other  line." 

In  the  same  vear  was  deeded  the  case  of  rirgima  v. 
7VHH..-.0-.V.'  an  ancient  dispute  as  to  the  true  locatmn  of 
a  surveyor's  line.     \'irginia  claimed  that  the  -  xistmg  line 
was  from  two  to  ei-ht  miles  too  far  n.  rth  ol  the  latitude 
of    ^(^^  v'.    Nvl>i^-li    was    the    line   tixed    by    the    b.n-lish 
charter.      Tennessee  contended  that  the  existing  line  had 
been  fixed  bv  joint  agreement  in  1S03  and  acted  up'-n 
ever  >ince.     Although  the  Con-^titution  (Art.  1,  Sec.   10) 
forbids  the  State,  to  enter  int,,  "  any  agreement  or  com- 
pact ••  without  the  consent  of  Congi^ss.  counsel  for  l  eii- 
nessee  argued  that  tin-  prohibition  was  only  intended  to 
applv  to  agreements  winch  might  affect  the  political  bal- 
ance'oi    pouer  in   the    Union  or  the   supremacy   ot    the 
fnited  States.      It   would  be  manifotlv    ab-urd  that   the 
States  should  be  debarred  fnni  the  convenience  of  direct 
negotiation  upon  minor  matters.     In  any  event,  so  u  was 
urged,  the  consent  ..f  Congress  in  tbi.  particular  case 
migdn  fairlv  be  inferred  lioui  c<jnduct. 

These  arguments  lound  lavuur  with  the  Curt,  which 
accordinglv  decided  in   favour  oi   the  exi-ting  line,  as 
claimed  by  Tennessee.     Subsjciuent  proceedings  earned 
»  M8  U.  S.,  503- 


44  AMl'.KICAX  SUI'Kl'l.Ml-    COURT 

the  case  on   for  anotluT   ten  years,   the   report   of   the 
bounchiry  ccmnnissioners  being  linally  confirmed  by  the 

Conn  in  i'jo,v' 

The  case  oi  the  United  States  v.  Trxas.  which  was 
tinally  decided  in  iS(j(,/  is  nir.re  inipnrtant  with  re-anl 
to  its  subject-matter  than  mo-t  oi"  the  b.jundary  cases, 
l,,r  tlie  territory  in  question  annanited  to  niore  than  a 
miUion  and  a  hall  acres.     'I'he  denuirrer  of  de.xas  to  the 


jurischctmn    was 
lap 


overruled  in  iSi)-','  Imt  lour  year.s 
elapsed  before  the  case  came  on  fc.r  tinal  hearing.  The 
controversv  is  extremely  complicated,  involvin-  as  it  does 
the  consideration  <.f  numenais  treaties  together  with  the 
examination  oi  maps,  surveys,  and  other  geographical 
evidence.  S. .  far  as  the  facts  can  be  shortly  stated,  they 
are  as  folli  lus  ; 

Te.xas  -iparated  fnin  Mexico  in  iS;/)  and  was  ad- 
mitted to  the  Union  in  1845.  Its  liontier  was  therefore 
determined  by  the  earlier  treaties  between  the  United 
States  on  tlie  one  hand  and  Spam  or  .Mexico  on  the  other. 
Of  these  the  most  important  is  the  Spanish-. \merican 
treaty  oi  iSi<),  which  fixed  the  frontier  as  follows; 

"  riu-  boundarv  line  between  the  two  countries 
west  ot  the  .Mississippi,  sball  begin  on  the  Culf  of 
Mexico  at  the  mouth  of  the  Riv  .■  Sabine,  in  the  sea, 
continuing  north,  aitnig  the  western  bank  of  th:it 
river  to  tlie  .^.'nd  degree  of  latitude;  thence  by  a  line 
due  north  to  the  degree  of  latitude  where  it  strikes 
ilie  !<io  Koxo  of  .XiiteliitiiclK-,  or  Red  River;  then 
following  the  course  of  ilie  i\io  Roxo,  westward,  to 
the  degree  of  longitude  kk)  we-t  from  Uond' ai  .and 
27,  frMii  W.ashington ;  then,  cros-ing  the  said  Red 
Rive:  a-,;d  running  thence  by  a  line  due  iiMrth  to  the 
River  .\rk;insis;  ihence,  following  the  course  of  the 
southern  li;nik  oi  the  Arkansi-  to  its  source  in  lati- 


1 190  U.  S.,  fi4 


-■  loj  I'.  .S.,  1. 


3 143  U.  S..  Oil.    .-hitr.  p.  ^g. 


r,ni"Xl).\KV  CASES 


45 


tude  42  nnrtli :  and  tlicncc.  hv  that  parallel  of  lati- 
tiulo  tn  tin-  South  Sim.  The  whole  bem^^  as  .aio 
down  in  Melish's  map  of  the  United  States,  pul); 
lished  at  Philadelphia,  improved  to  the  tl^^t  ot 
January,  18 rS.    .    .    . 

Thi^  line  was  repeate<l  in  the  treaty  with  Mexico  of  i8_'S, 
and  in  an  aet  pa^>ed  hv  the  Re,nil.lic  of  Tcxa-.  in  iS;,6, 
Texas  was  admitted  u<  the  I'nion  by  resolutmn  0I  Con- 
gress  in    1S.15.   and   hv    Act   of   Couf^rcss   in    iS^n  the 
borders  of  Texas  were  dehned  as  cnmmencm-  "'at  the 
p,.int  at  which  the  meridian  ..f  one  hundred  de^'rees  west 
from  C.reenwich  i.  i.Uersected  by  the  parallel  ot  thirty- 
six  dc'Tces  thirty  minutes  north  latitude. 
^    As  "the  contractini,r  parties  were  dealin-  for  the  most 
part    with   a   verv   unsettled    and    imi)erfectly   surveyed 
countrv   it  is  not'unnatural  that  disputes  arose  a>  to  the 
interpreiatinn  of   these  document^      The   hrst  question 
arose  a^  to  the  identity  of  the  "  Ked  River."    Texas  con- 
tended that  the  treaty  line  followed  the  stream  marked 
as  the  ••  Xorth  Fork  "  on  the  accompanyin-  sketch,  while 
the  United  States  claime.l  that  the  southern  iiranch.  other- 
wise known  as  the  "  Prairie  Dot,^  Town  l-ork,"  was  the 
true  ••  Red  River."      The  worcU  of  the  treaty,  "  followm.i,' 
the    cour^e    of    the    Ki-    Koxo.    wrstuuirdr    certainly 
favoured  the  l-cleral  argument.    To  deci.le  this  point  an 
immense  amount  .  f  i:eo,i;raphical  evidence  was  mvesti- 
f^atcd  by  the  Court,  every  available  map  and  bnck  beniR 
carefully  examined.     In  the  result  the  Curt  upheld  the 
claim  of  the  United  States. 

A  further  (|uestion  arose  as  to  the  one  hundredth 
meri.lian.  On  Meli^h'^  very  imp  ' 'ect  map  thi.  was 
.idmiitedlv  misplaced  niMre  than  a  hundred  mile,  too  tar 
to  the  east.  Texa>  intended  that,  since  the  map  had 
been  expre-^lv  made  a  part  uf  the  treaty,  the  j.arties  were 
bound  by  the  meridian  x-  Mebdi  had,  marked  it.  irre^iec- 


46 


AMF.RK'AX  SUrKKMl",  COURT 


tivc  of  its  ristr.mnniical  cnrrcctncbs.     Up-m  this  ingenious 
ar^viint'iit  the  i  "Urt  remarked  : 

"  Mi'li-h's  nia])  of  iSiS  wa-  taken  as  a  t,'cneral 
l)asis  lor  the  adjnstinent  <<i  houadaries,  hut  tlie 
rij;ht-  m"  the  two  nations  were  made  suhject  to  the 
loeatiMn  of  tlie  hue.-,  with  more  precision,  at  a  suh- 
sequeii!  time,  l)v  commissioners  and  surveyors  ap- 
pointed liv  the  respective  <,rovernments.  So  far  as  is 
disclosed  hv  the  diplomatic  correspondence  tliat  pre- 
ceded the  treat V,  the  negotiator-  assumed  for  the 
|)urpo-es  of  a  settlement  of  their  controversv  that 
Mclish's  map  wa>  iti  the  main  correct.  I'ut  they 
did  not  and  could  not  know  that  it  was  accurate  in 
all  respects.  ...  It  wa-  to  he  fixed  witli  more 
precision,  and  iiesi.t,Miated  with  m'lre  exactnc-s  hy 
representatives  of  the  two  nation.-^."  ' 

>  i62  U.  S.,  38. 


BOUNDARY  CASES  47 

An<!  the  Court  furlhcr  ponited  oiU  that  the  reference  in 
the  Act  of  Congress  of  1850  was  obviously  to  the  true 
meridian.  Texas  herself,  in  fixing  the  hmits  uf  her  coun- 
ties, had  also  repeate.lly  acted  upon  the  true  line.  The 
case  therefore  re:ulled  in  a  decree  in  favour  of  the  United 
States. 

The   unsuccessful    attempt    nf    Texas    t^.   maintain    a 
treatv  line   founded  up.m  a  hlunder  may  b.    contrasted 
with' a  similar,  but  little  knnv.n  ca>e  in  l-Airope,     15y  the 
Treaty  of  the  I'vrenees  in   \hy)  Spain  ceded  to  France 
•' th.rtv-three  villages"  of   the  Cerdagne   Valley  in  the 
eastern  I'vrenees.     It  was  afterwards  discovered  that  one 
village,  called  Llivia.  was  legally  entitled  t..  be  called  a 
"town.-     Spam  thereupon  claimed  that  Llivia  was  not 
included  in  the  cession,  and  this  claim  was  admitted,  so 
that  the  place  remains  to  this  day  as  an  island  of  Spanish 
territorv  in  the  soil  of  France. 

The  case  of  Missouri  v.  Xdmiska  (1904)  '  needs  no 
more  than  a  passing  notice,  since  the  principle  of  law 
governing  its  deci^on  ha<l  lieen  already  well  settled.  On 
die  sth  lulv,  iS(.7.  the  Mi.^souri  River  changed  its  course 
,n  n  few  hmirs  and  cut  a  new  channel  through  a  narrow 
neck  nf  land.  Tlie  -Id  channel  so(.n  drie<l  up,  thus  leav- 
ing a  piece  of  Xebraska  land  attached  to  the  Missouri 
.hore  This  being  a  clear  case  of  -  avulsion,"  the  Cnirt 
had  tin  difliculfv  in  .leciding  that  the  title  of  Nebraska  to 
the  land  was  unaffected  bv  the  <liversion  in  the  course  ot 

the  river.  .  . 

The  next  ca<e  t..  be  considered,  that  of  l.iniishina  v. 
Mississif^pi  m  un^<r  is  of  more  general  international  in- 
terest because  it  involves  a  dispute  as  to  rights  111  tern- 
tnrial  waters  of  the  sea,  A  reference  to  the  map  will 
show  that  at  the  Culf  -f  Mexico  the  two  States  are  sepa- 
rated bv  an  arm  of  tl.e  .ea  called  Missi-sip,)i  S-nind.     Ihe 

M06   U.   S.,   2i.  ^^.   U.   S.   .   and  50. 


48  A.MKKIl  AX   SL'i'Rl.Ml-:  COL'UT 

conflict  arose  through  the  claim  of  c:.ai  State  t.;  regulate 
the  r.vster  fi-heries  in  these  waters.  Matters  liad  in  fact 
.f,'c;ne  so  far  that  each  party  had  organised  armed  patrol.-. 
to  enforce  its  jnri-dicti-m,  so  it  is  probable  that  the 
judicial  settlement  of  the  contrnversy  prevented  a  certain 
amount  of  bloodsheil. 

The  historv  of  the  liomidaries  begins  with  the  treaty 
of  \ji(i  l)etween  'ireat  i'.ritain,  I'Vance,  and  Spain,  and 
was  followed  by  the  Court  throuLjh  all  the  various  trans- 
actions affecting  the  Louisiana  Teirit'Ty  down  to  the 
admission  of  the  two  States  to  the  I'lii'-p,.  It  is  unneces- 
sary here  to  examnie  each  of  the  treatie-  in  detail,  since 
in  each  the  disputed  houndarj  is  defined  in  substantially 
the  same  terms.  We  may  begin  with  the  Act  of  Congress 
(if  1811,  passed  to  enable  Louisiana  to  enter  the  Union, 
which  thus  detine-  the  line  : 

"...  along  the  middle  of  the  said  river  [Iber- 
ville] and  Lakes  Maurepas  and  Fontchartrain,  to  the 
Gulf  of  Mexico;  theiue.  hnunded  by  the  said  (hilf, 
to  the  place  of  beginning;  including  all  islands  with- 
in three  leagues  of  the  coast.    .    .    ." 

Louisiana  was  admitted  a  State  by  .Act  mI  Congress  in 
the  next  vcar.  and  the  Act  endowed  her  with  additional 
terruory  tf.>  the  north  of  the  lakes  already  mentioned 

"  to  the  eastern  mouth  of  the  Pearl  River;  thence 
up  the  ca-tern  branch  ni  the  I 'earl  River  to  the 
31st  degree  of  north  latitude;    ..." 

When  Mississippi  was  admitted  to  the  Uniuii  in  1S17 
the  .\ct  of  Congress  detined  her  territory  as 


'•  including  all  the  idands  within  mn  leagues  of 
the  sh.ire.  t-  llie  ni'-t  ea-tern  juncti'  n  of  I'oarl 
River  and  Lake  Hurgne." 


BOUNUAkV   lASLS 


49 


^f«lfe 


P.  un 


50 


AMF.UU'AX  Sri'K'.Mi:  <  '  •IRT 


A  ^lanc^■  at  ihe  map  uill  >liinv  at  oiicc  tliat  tlK'>c  two 
■,-rant''-..  if  n-id  literally,  arc  conflictin^^  -inrf  there  are 
certain  iMaiul-  win  h  lie  l)Mtli  w;tliiii  three  leai^ue.  ..1  the 
Louisiana  inainlaii.l   an.l   witlun   h\   lea,L;ue>  "i   Missis- 
sippi.    Such  a  enntlict  <^i  ian-ua-e,  il    it  existed,  oniM 
,,n!y  he  resolved  in  favour  <.\  Luui-iana  .i^  the  earlier  oi 
the  twn  -rantee-.   since  <-"()n5:ress  ha-,   v.n  p,.uer  to  di- 
inini>h  the  terntMry  '■\  a  State  uitlmut  the  State'>  con- 
sent.     .\cc(.r(li:i-!y   the  C^un   ruled   ih.al    the    wnrd-   in 
the  Mississippi  Act  must  he  rea<l  a>  applying'  >'nl\  tu  the 
chain  nf  alluvial  islands  lyin,!,-  parallel  f.  the  Mississippi 
shore,  and  adjud-ed  V>  i.ouisiana  all  the  isl.nids  hwr.ler- 
ing  her  oun  mainland  and  s.,uth  ..f  the  main  channel  m 
the    Sound.       I'urthermnre,    as    enunsel    for    Liniisiana 
pointed  out,  and  the  Court  agreed  : 

"  L.iuisiana'-s  title  to  the  disputed  territory  is  con- 
firmed i  V  prescription,  usucaiitioii,  aaiuiescence.  and 
soecitic  ackn.ixvledgment  hy  the  State  of  Mis.sissippi. 


ihe 


Hsputed  territ.  ry  has  always  heen  suh- 


jcct  to  the  M  iverei.>,nity  of  Lnui-^iana,  and  has  yielded 
taxes   to   her   e.xclusi'velv   according   t<<   the   assess- 
ments laid  hy  her  ot^hcers.    .    .    .    The  State  of  Mis- 
sissippi has  recognised  the  di-puted  terntury  as  lu'ing 
the   property   of    the   Stale   ..f    Lnui-iana,   and    her 
pre.sent    hniindarv   nreteiision    is  l)Ut    a   matter    (.f 
recent  creation  after  long  years  of  recognition  ot, 
anu  acquiescence  in,  Louisiana's  ownership  and  sov- 
ereignty.    It  was  onlv  after  the  oyster  hshermeii  ot 
Mississippi  hv  their  w.isteful  svstem  of  tislimg  had 
either  tish.d  up  or  destroyed  all  of  the  Mississippi 
oysters  oi  anv    value  that  these  fishermen  hegaii  to 
invade  Louisiana  waters  in  .search  of  thnn,     I  mil 
recent  vears  the  Louisiana  fisheries  were  ojicn  fo  all. 
but  are-  now  closed  t.^  .all  except  her  citizens.     It  was 
the  exercise  of  this  n-ht  that  incurred^  Mississippi  s 
displeasure  and  hrought  ahout  ih.i.-  suit."  ^ 

I  202    U.    S.,    26. 


IU)r\i),\I<N'   CASI-.S 


51 


The  Court  inrtlicr  bi-h!.  full,, win-  a  dcciMdii  ot  Lurd 
StcAvell  in  the  Enj,dish  Prize  Cnurt,  that  alluvial  islands 
arc  appendages  of  the  shure^  from  which  they  are  funned. 

Missiisippi's  claim  tu  the  >uuthern  <;r.,up  of  islands 
was  thus  decisively  rejected  hy  an  unanimous  L(jurt.  It 
remained  to  lay  down  the  rule  for  lixm.i;  tlie  l>uun<lary 
in  the  water  area.  The  Court  decided  this  upon  a  prin- 
ciple known  to  writers  on  mternational  law  as  the  doc- 
trnie  of  the  thalurfj  or  "  valley  way,"  which  means  that 
the  middle  <,f  the  mam  'iavij;al)le  channel  i>  to  he  taken  as 
the  homidary.  The  Court  had  already  applied  thi>  doc- 
trine to  the  case  of  an  inland  river  hnundary  in  lozca  \. 
Illinois,  and  n(j\v  laid  duwn.  in  the  ords  of  Chief  Justice 
Fuller. 

"that,  on  occasi(jn,  the  principle  uf  tlie  lluihcrg 
is    applicable,    in    respect   of    water    homidarie>,    to 


sounds,  bays,  straits,  ijulfs.  estuarie^ 
of  the  sea."  ' 


;nid  other  arms 


It  is  obvious  that  this  doctrine  can  have  no  application  to 
the  open  sea  or  to  enclosed  waters  that  ".re  navi,i,'able  over 
their  whole  area.  Counsel  foc  .Missi>>ippi  therefore 
maintained  that  in  this  case  it  did  not  apply  beyrmd  the 
point  where  the  Rij,n.lets  channel  entered  Lake  Bor-ne, 
v.-hich  they  argued  to  be  open  sea  forming  part  of  the 
Gulf  of  Mexico.  But  in  point  of  fact  the  bay  c  diMSts  of 
comparatively  shallow  water  except  in  the  mam  channel, 
and  the  Court  therefore  held  that   the  doctrine  of  the 

tliaki-i'(/  applied. 

Thejudgmcnt  of  the  Court  ace  .rdingly  went  m  tavour 
of  Louisiana,  and  Mi-i<<ippi  wa^  re-strained  bv  injunc- 
tion "  from  disputing  the  sovereignty  ami  ownership  of 
the  State  of  Louisiana  in  the  land  and  water  territory 
south  and  west  uf  ;,aid  boundary  line  as  laid  down  ou  the 

1202  U   S.,  50. 


52 


AMI-.KIC.W   Sn'Kl-.MI',  (  (  )[1<T 


fnrcL;oin,t^  maii."  It  iiiav  Ik.-  adilcl  tliai  the  u^tial  prac- 
tice of  till"  (''Hiri  m  tiK'-c  liniiii(lar\  ca>c>  \va>  to  make 
each  |)art\-  he.ir  ii^  own  co^t^  and  --Iiare  tlie  Cf)Sts  of  aii\' 
survey  tliat  iiiil;!:!  lie  iiect'N^ar\.  I 'ait  in  llii^  ca<e,  as 
Mississiiijii  \va->  clearly  a  \vroni;(|o(.T.  ->iie  was  urderel  to 
pa_\'  the  ciwts  of  the  :  iiit.' 

W'lishiii'iUiii  \  Orraoii  {  njoS)  -  i>  aiiother  ca -c  rais- 
in;^ a  que^th  ^n  (if  liouiidaries  in  tidai  water-.  The  del'ini- 
tioji  ot  the  li'iundar\'  is  contained  ni  the  Act  ol  Lon.:;re>> 
of  .'.S31;,  adiiiittiii,^  ( )re^on  to  the  L'liion  : 


"  I'>e^iiiiiinj^  one  marine  leaj^iie  at  -ea  dne  wi-t 
from  the  point  uliere  ilie  fort\--ccMnd  |iarallel  (it 
north  latitude  intei-ect-  the  -ame :  iheiice  northerly, 
at  the  same  (hstance  tr^  ni  the  line  of  the  coa^t.  Inuil;" 
we^t  and  opposite  the  Stale,  iuclndinj^  all  i>land.> 
within  the  jurisdictioii  of  tlic  United  States,  to  a 
jioint  (hi<'  ue^t  .and  o]ipo'^ite  the  middle  (f  the  n- 
^hip  eh.annel  of  the  ( 'olunihia  K'iver;  tlK'nc(.\  ea-tei.v 
to  and     ;i)  the   nnddlc  ehannel  of   -aid    river,   and. 


where  it  I^  divided  hv  i>laiids,  iii)  the  mi 


.f  the 


vi(le>t  ehannel  thereof,  t<i  a  ])oiiit  near  l-"ort  Walla 

Walla." 


The  Act  of  ii'^i'^')  a  Imittiny:  the  .State  of  Wa-hiiiirton  was 
ill  -.ih>tantially  tiic  s,inie  tc-ne-. 

ill  iS5(>  the  rivi  ■•  liail  two  main  ch.nincis,  hoth  n-cd  li\ 
-hip-,  ami  Coiikr--  fixed  the  hoiiiidarv  in  iIi.-  north  one. 
ill  the  lour-e  <i\  •\u]i-  the  north  ch.aniiel  ;,-ra.diially  liecame 
nnn.ivii^ahle.  ..ii'i  coinnu  rce  tihered  the  Columhia  l\ivcr 
!.\  the  south  ehannel  onl\  \\  .islnnfjtoii  now  ar<;ue(l  that 
the  l>oiind,ir\  l>e'ween  the  two  St.ite-  had  likewise  shifted 
to  the  soiitli  ehannel.  relyint;  on  the  doctrine  of  the 
fuihucg  as  laid  down  in  the  case  of  I.ouisiaiui  v.  Missis- 
sipf^l.    lint  in  this  case  tlio  application  of  the  doctrine  was 


'  Mi   V.   S..    9) 


a  21 1    L'.    S.    I. '7. 


I'.OL'XI)  \UN'  ("ASKS 


53 


(lualiiU'il  liy  the  tact  tlial  ('"ii-rr  -  liad  f\])rc^.4y  uetined 
the  lii;Uii(lary  a-  1;  nvj;  m  tin  inirlh  ciiaiincl. 


"  The  Cnurt-,"  -aiil  Mr.  Ju-tice  llrcwc-,  "  have  no 
power  ti)  ehanL;e  \]w  '.cuiulary  thus  prescribed  and 
estahhsh  it  at  the  tmddie  ■<{  -^  ^nie  other  channel. 
That  remains  the  boundary,  ahhou;;h  ».nie  other 
cliannel  nia\'  in  the  course  of  time  become  so  lar 
snperi.T  a-^'t^  be  praclicall\  the  .ally  channel  for 
ve-s-els  ^oui.u,  m  and  -tit  of  the  river.  .  .  .  The 
boundarv  between  the  two  Mate-  i-  the  centre  of  the 
north  channel,  ehanv.ed  only  a',  it  may  be  from  tune 
to  time  thriiu-h  the  pn^ccsscs  of  accretion. 

!n  the  next  \ear  Wadiin-t-n  applied  for  a  relu-iring 
of  the  ca  e,  and  attempted  to  iier-ua.'/  the  Suiiieme  L  ourt 
tiiat  it  had  taken  a  wron-  view  nf  tlie  tact-.'  I  he  I  ourt, 
Iv.wever,  -a'  n-  rea-n  to  alter  it^  orij^'inal  oi)inion,  and 
conclnd.'d  t...  ca-e  with  a  -u,-,'j;e-tion  to  the  partie-  that 
the  ■  ^vere  \v -w  i.i  a  pi-itioii  t^ .  -ettle  their  dit'fereiices  by 
a^jreemeri. 

Missouri  v.  K^ni.uis  (  njoSi  '  !->  .another  of  the  "mid- 
channel  "  ea-e^.  but  one  "f  niiinr  ;  ractual  inipoi  taiicf,  a 
^mall  idaiid  in  the  Mi-otiri  l\i\.r  near  Kan-a-  City  bein^; 
the  onl\  territory  in  .li>p"te.  I .y  gradual  erM-.i,]!  nt  the 
bank^  the  mam  channel  ■  f  the  Mream  had  come  t.i  tlow 
cast  of  the  Inland.  ihe  (  -urt  heM  that  the  boundary 
b,ll(u\ed  the  m.nn  ch.iiinel  iii  -luli  .a  ca-e.  and  the  i  dand 
was  C'li  oinenlK  auardi'd  to  l\an>a>.  The  ca.-e  illus- 
trate-^  the  elfecl  oi  "accretion"  a.-,  clistiiiguishcd  from 
"  avul  loll." 

A  some  ..I  c  nii)bcated  case  is  th.at  of  Miiryhiinl  v. 
ir,st  I'i'-i,  ■  !  (  iMiti  I,'  m  which  two  <li>tmct  i-»ucs  were 
pre-ented.     One  que-iiou  ar^.-e  iipfii  the  crrect  pijiiit  ol 


'  .'11    L".  S.,  1.15-6. 
•  ^u  U.  S.,  J05. 


'  -'IJ    l'.   -S.,  7"- 

*  i\7  U.  S.,  I  and  577. 


54 


AMl-.klCAX  SL'l'kCMl".  (OL'KT 


nri.trin  fur  a  ^urvex'  r'>  lino,  am!  the  i^thcr  (jU(."-tinn  was 
ulu-tlur  t!u'  liininilarv  dii  tlu'  ri,i;l'  liank  <>i  tlic  rotoniac 
KiviT  -111  ulil  ill'  rei'kMULil  trmii  li.^li  i  ^r  l^av  water  mark. 
With  re.Ljard  to  the  tir-t  ([ur-tinii,  it  wa-.  at^reed  th.at  the 
line  HI  (jiie>tii)n  should  start  ir^  in  a  pwim  de-cvilieil  in 
an  !-'.n;,di-h  ciia;  ter  nl  id.^j  a-  "the  lir-t  t'uuiitain  uf  the 
river  l'(.t'  mac,"  and  thence  due  nnrtli  to  the  >'iuthern 
Ivirder  of  l'enn>vlvania.  The  parties  differed  a^  to  wliicli 
of  two  mountain  streams  was  to  he  rei^arded  as  the  source 
of  tile  I'olomac.  and  tli'  iliffereiice  involved  a  stri])  of 
land  ahout  thirt\  -st-veii  nnles  !( iii^'  liy  a  mile  and  a  ((uarter 
•Aide,  'i'he  controversy  was  of  ancient  standinj;.  and  in 
\~-\<<  a  decree  of  the  Kini;  in  Council  had  fixed  the  ]ioint 
in  favour  of  \'iri;ini;i,  predeces-nr  in  title  tn  West  \  ir- 
.i^iiiia,  and  it  li.id  lieeii  marked  li\  a  niiii  inunt  c.iiled  the 
"  l-airfax  ."^t'lie,"  Ir'ni  that  point  a  line  had  been  run 
I>v  ,1  -urve\'  r  named  Deakius  in  1 7XS.  M.aryland  h.ad 
prMiested  tluii  and  often  afterwards  a;.;ainst  the  correct- 
ness of  this  sur\e\,  km  m  |ir,ictue  flu;  De.akiiis  liiu  had 
.alwavs  been  acteil  u])on  hv  the  inhalntants,  and  liad  even 
keen  recojjniscd  m  Marxland  ^ran;-.  l\no\' ■iil^  the  im- 
portanci"  which  the  Court  al\\a\-  .iit.iclied  to  ioiij;  ])osses- 
siciii.  the  reader  uill  lasily  L;.itlier  fr.  111  the-e  f.act>  that 
the  dicisioii  oil  lliis  point  \\a-  hniind  to  ije  in  la\"ur  of 
W'e-t  X'irinnia, 

With  reiiard  Im  the  nilier  ijue-tii  n.  the  charter  L:r.iiitcd 
1. 1  Li  ifd  r..ilt:ni'  re  in  i<>^-  ha\e  iiim  ownership  of  tlie 
rutomac  "I"  the  farther  hank  uf  the  said  river."  and 
the  oulv  doiikt  that  cmild  ari-e  w  as  whether  tlus  extended 
to  hij^h  or  nnlv  to  low  water  mark.  Ilrie  at;,im  the 
ari,nnnent  fr^  in  possession  and  fr.'iu  the  conduct  of  the 
parties  was  (leci>ive  of  the  matter,  liie  title  (if  \\'e-t  \  11- 
jjinia  was  derived  from  her  jiareiit  ."^late  of  \'irf;inia. 
From  the  earliest  times  \  uf^mia  h,id  treated  the  soil 
down   to  low    water  mark   :\-:  lier  own,   ami  a  eomn.ict 


BOUXDAKV  (ASKS 


55 


with  Maryland  in  17S5  ha<l  cxprcv-ly  reco;:ni-;c(i  her 
ri,i;ln  "i  ci'n>tructini;-  "  wliarvf-  and  ntluT  improve- 
ment-- "  iin  the  --liore.  L'jm'H  t'"-'  win  ilr  ea-e  a  decree  \va- 
accordin-ly  ma<le  in  I'avonr  '<i  WeM  \ir^inia,  uith  the 
nsnal  pr.-vi-Kin-  fur  a  detailed  -urvcy  <>i  the  h^iundaries, 
the  Cd-t^  heini;  dialed  eijnally  hy  the  partie-.' 

'llie  reader  will  reedlect  that  111  the  ea-e  "f  .ILibdnui 
V.  {iior<jia  (  iS5(n  ^  the  (  nurt  decided  that  the  wur.l 
"hank"  Rave  a  Imundary  tn  hi-h  water  mark-  1  he 
ciiiilrarv  deeiMi-n  m  the  later  ca-e  really  re-ted  i;])')!!  tlie 
ari^nment  from  lon^i;  iinsscs-ioii. 

'i'he  ea-e  of  Xnrlli  C'ciri'liiui  v.  Tiitiu-ssrr  (  njU''  \vas 
a  d,i~pute  o  nceniinj;-  ■  nif  of  the  very  few  hnnudarie-  in 
tlie  I'liited  State-  whieh  follnw  water-lied  line-,  hnt  its 
detail-  are  of  little  mtere-l  to  an_\  except  -urveyor>.  1  he 
cuntrover-\  dated  from  Kevolutionai  \  time-,  and  a  com- 
promise hetweeii  the  tvvo  Males  in  iSji  had  li\ed  the  hue 
ill  th.'  inanner  ii^'W  claimeil  hy  X'iTth  v."aroliiia.  Ten- 
nessee had  never  di-puted  tin-  line  until  iSSj.  and  the 
prest'iii  -iiit  aro-e  ( ait  ■  f  her  atlemi.t  'o  j,rant  pa.'t  ■•i  the 
land  111  (|ne-ti.'n  in  iSoj.  dlie  d.ei-i'ii  of  the  Court,  as 
iniuht  he  e\]ieeled.  ua-  in  fav.ur  ..f  rati  f  ■.  ini;  the  o  ni- 
pioiiii-e  line  "i  iNji,  and  (  ommi--ioner-  were  appointed 
to  mark  it  in  a  iierinaneiit  manner  The  rejioil  ol  ihe 
eomini--ii  aier-  \\a-  c"ianiiied  in    OM'' 

I'lie  \a,;;ane-  of  the  M  i--i--iiipi  i\uer  were  '■e-poi'-ihlc 
f.  r  the  ea-e  of  .  Irkiiu.uis  \  rniiu\\.',\' .  uhich  came  helore 
the  Snjireme  i  ourt  in  lyi^.  W  iuii  happened  is  thus 
descriheil  hy  the  L'ourl  : 

"On  March  7.  1X7(1.  tlie  river  suddenly  and  with 
preat  vi.  lence.  within  aln^iit  thirty  Itours,  made  tor 
It-elf  .1  nevv  eliannel  directlv  across  the  neck  opposite 


'-•17   L-.   S..  585- 
^Antt,  p.  3;- 


'^35  U.  S.,  I. 
♦  J40  U.  S.,  &5a. 


'-iA(j  V.  S.,  158. 


56 


A.\n:Rii".\N  surKEMi.  cof.rr 


l>Ian<l.  so  tluu  the  'M  channel 


the  apex  ni   L)ean'>  bland,  so 

r.,uii.l  the  hcnd  .>!  the  eioow  (a  distance  ol  litteen  to 
twentv  niilcM  ua.  ahand..ned  l>y  the  current,  and 
ahhou^h  U  rcnianied  lor  a  few  years  covered  w.h 
dead  Tvater  ,t  ua.  no  longer  navigable  except  m 
ti,nc.  M  h„h  water  ,.r  ^n.all  hoats  and  th.s  con- 
tinued unlv  lor  a  ^h,,rt  tnne.  Mnce  the  old  he  1  im- 
n.ed.atelv  heuan  V.  UH  with  sand.  sed:ment.  and  al- 
luvial depo-iis.  In  the  cnnr>e  d  tune  it  liecaine  <  r\ 
land  suital  ,1c  v^r  cul.ivatinn^  and  tu  a  con.iderahle 
extent  cnvered  with  tinil-er. 

A.  we  have  already  seen,  the  treaty  of  ,7".^  ^^'^'V^^ 
,rns  all  the  later  document^,  made  "the  mu  die  n.  th 
Ru-er  MisM.Mppi-  the  iK-undarv  I,etwcen  the  l.nt.sh  and 

„„  French  p.^s,.-.u.n.     That  l^ein,  s,,  ,t  wuuld  appear 
UkU  the  case  was  clearly  one,,,- a  vulo.n,     luit  coun^e 
.r   Tenre<see   attempted    t-   avoid    a    decw^n    ..n      u. 
ground  1.    putting  forward  a  theory  which  thev  called 
the  '■  doctnne  ,^1  Mih.ner,,ence  and  reappearance.        Iheir 
claim  ua-  that  durm-  some  hftv  >ears  the  river  had  by 
gradual    u..M.,n    lieen    eatm,    up    Tem.e>see    ternUvr>-^ 
;h,ch  u as  ..nlv  rcs,„red  l.v  the  ^ud.lcn  diversion  of  th 
stream  m    1S70.     This  d.  .ctrine  uas  •„  he  l.amd  m  ok 
,,,v   hooks   vNith   reference   t.  ca-.s   uhere   the    s.a   had 
cvulfel  a  manV  land  and  >ul.e,iuently  receded,  leaving 
,thare-     lUu  the  (  ^  .ut  dechned  to  extend  the  pnnc.ple 
,„  the  m-adual  er.su.i  caused  hv  a  stuam.  and  the  tit  e 
c,t  Arkau-a-  i-  the  laud  in  .iue>tion  ua.  acoTdmgly  held 
to  ho  unaltected  l.v  the  "  avulsion  "  of  187^). 

With  the  .as.  of  .Irkmisas  v.  Tnwcsscc  we  c^  .ne  to  the 
,,^,,  ,,,,,,,,.  I„,„„,,.rv  disputos  ihat  have  un  to  the  tune  ot 

^vr-m"  been  hrought  for  decision  to  the  Supreme  Lourt. 
ConsidcritiS  them  as  a  whole  the  most  lu.tu.ahle  feature 

»  if  his    ;iM. 'been   ai.plie.l   tn   Iiul.an   cases    where  a   nver   rc- 
,urnl  to  its   proper   be7and   thus   restores   submerged   land. 


BOUXDARV  CASES 


57 


of  the  scries  i^  tb.e  importance  which  the  Court  always 
attaches  to  the  (loetrine  that,  as  the  common  phrase  goes. 
••  possession  is  nine  point,  of  tlie  law."  Xo  fixed  period 
ni  pre^cri].t!on  lia.  heen  laid  down,  but  in  every  case 
where  there  ha-  hecn  uninterrupted  pns.oMi.n  for  any 
considerahle  time  the  jud-nieiit  of  the  Lourt  has  been 
i^iveii  in  favour  of  the  pii.>-e^.-or. 

|„  the  -econ.l  place  it  i-  t-  he  ol,-erved  that  the  Court 
treat,  everv  ,iue.tion  .,f  boundary  as  a  ([ue.tion  ot  legal 
title  pure  and  <imple.     It  d.)c->  not  feel  that  it  i>  emitled 
to  consider  what  inav  be  call-1  the  .liploniatic  or  political 
aspects  of  any  c.iln.ver.y.      Nor  under  the   American 
C.Mistitntiun    would    any    ..ther    than    the    stric'ly   legal 
metliMd  he  possible.     .Ml  bounclarie.  in  the  L'mted  States 
.lepcnd  upcni  legal  document,  of  some  kind,  either  Kng- 
hdi  charter^  or  treaties  with  foreign  powers,  or  Acts  uf 
Congress  and  the  State  Legislatures.     Furthermore  the 
State,  are  f  .rhid den  U>  employ  among  them.elves  either 
war  .ir  diplMmacy  or  ecoiiMmic  coercion,  so  no  questions 
of  strategic  or  economic  frontiers  can  possibly  ari.e,     1  he 
C.m.titution  cimtain.   no   provisions   for   settling  boun- 
daries in  accordance  with  the  wishes  of  tlie  people  im- 
mediatch   affected,  but  it  doe-  provide  (  .\rt.  W  ,  Sec.  3) 
that  n.-  State  diall  be  deprived  -f  any  terntMry  whatso- 
ever wi;h..ut   its  ,,wn  consent.     Th.   Court  therefore,  in 
deterniMun.L;  boundary  (luestion:^.  is  guided  in  the  first  in- 
stance bv  the  written  C<  in>tituli-ii.  and  secondly  bv  the 
treaties    ■iid  other  le^al  acts  applicable  to  the  par-cular 
ca.-.e.     If  these  are  not  sutficiently  explicit  to  conclude  the 
matter,  recourse  i-  had  to  the  principles  ..f  the  Ihiglish 
Common  Law  or  to  any  rules  that  Imd  general  acceptance 
amojig  the  leading  writers  cm  international  law.     The  tact 
that   the   F.nglish   Common    Law    i.   the    i.aindaii..n   ol 
American   jurisprudence  has  suiipbed  the  Court   with  a 
coherent  body  of  doctrine  whuli  enable,  it  to  leiidtr  a 


5« 


AMi':KU  AX  sl'Pki:mi-:  roi'R- 


lifdnn   l>asis   (^f 


scries  of   judgments   rc-tmg-   upon   a   uui 
principle.' 

Tliesc  circuni>tances  mu>t  lie  carefully  borne  in  mind 
when  it  is  desired  to  create  a  Court  of  the  Nations  with 
functions  in  any  way  r(.'semi)ling  those  of  the  Supreme 
Court  of  the  United  States.  If  we  arc  to  estal)li>h  any 
kind  of  permanent  tribunal,  as  distinguished  from  occa- 
sional arbitration  commissions,  we  mu-t  provide  it,  m  out- 
line at  least,  with  a  consistent  body  tif  rules  upon  which 
to  work,  Nations  can  liardly  be  expected  to  commit  their 
destinies  to  the  arbitrani'Mit  of  a  small  .^roup  of  men  who 
are  g-uideti  by  nothing  better  than  their  own  discretion. " 

But   the  real  ditiiculty   will   arise   when   the  Court   is 
called  upon  to  solve  boundary  ([uestious  which  have  their 
root  in  deep-seated  political  conllicts.     it  is  comparatively 
easy  to  decide  a  dispute  which  turns  upon  the  construction 
of  a  document  or  the  legal  effect  of  deviations  in   the 
course  of  a  river.     But  it  is  manifest  that  the  rule>  laid 
down    in   such  cases  do   not   help   us   to   (k-tcnnine.    lor 
example,  where  the  boundaries  sh.i'.l  be  drann  between 
Italy  and  Serbia  on  the  .Adriatic  co.ist.     .\!1  court:-  pre- 
suppose law-^,  or  at  least  some  commonly  accepted  notions 
of  justice,  and  if  these  grave  political  controversies  are 
to  lie  brouglit  within  the  range  of  judicial  settlement,  it 
is  necessarv  that  we  sh.nild  .igree  beforehand  upon  some 
leading  princii.le    by  which  they  are  to  be  decided.     It  is 
clear   that   the   doctrine   tif   long   possession   so   strongly 
favoured  iiv  the  Supreme  C"ourt  will  not  be  of  itself  suf- 
ficient.    In  this  present  year    i^oo,  the  civilised  world  -s 
busilv  en-aged  in  bre.ikmg  u])  arrangements  uhich  have 
centuries  of  established  titlr  to  supjiort  them.     The  tact 

'Tliis  lias  li.rii  rciK-atcdlv  pointed  out  by  the  (mirt  ils.lf: 
•Tlie  languajjc  of  the  Constitution,  a>  lia^  tiecii  well  said.  Could 
not  he  understood  witliout  relerenee  to  the  Lomnioii  l.aw_  — 
rmted  StaU-s  v.  IVon,,  K,m  .Irk-  (  K^k)  U.  b.,  654).  /"•r  Mr-  Jus- 
tice Gray. 

^  Upon  this  point  set-  also  (  lupter  \  II. 


BOrXUAin'  CASES 


59 


that  an  iniu^ticc  lia<  la^tc<l  a  l-ui-  time  ir.  an  insufficient 
reanm  lonkciain-  that  it  mu:-t  continue  for  ever. 

It  is  not  uiihin  the  province  ot"  this  e.siy  to  lay  down 
rules  lor  the  settlement  of  such  (lur.tions.  Present  indi- 
cations point  to  the  adoption  in  s..me  form  or  other  <if 
the  doctrine  of  the  th'hisatc.  tlioULih  thi-  too  ha>  its  difti- 
cultie>,  especially  in  dealin-  with  mixed  population  and 
mideveloped  race^.  P-ut  it  is  essenti: '  to  understand  that 
unless  some  common  principles  of  ueci>ion  are  a^^reed 
upon  l.y  the  civilised  woi  1  ihe.^e  -rave  political  contro- 
versies cannot  he  judicially  settle!  at  all. 


ciiArn.u  i\' 


TIIK  RKC()\  KKV  ( »F  STATK  DKBTS 


WnKN   in   i7')3  iIk-  Supniiif  C".  urt  aecidcd  in  CIus- 
Ju'lm  V.  Cconjui  '  ihat  a  State  oul.l  l.c  sued  I>y  a  citizen 
(it  aiiiitliLT  State   'u  \  the  red  very  ..la  clclit  due  t.i  hini  a 
wave  (.1  indiKnatic.n  ^uept  thndi^li  the  Uninu  at  the  af- 
front thus  uttered  to  the  dit,mity  ut  a  "  sovereign  "  power. 
Georj^na  utievlv  rei'u^ed  to  emniily  with  the  jud-ineiU,  and 
the  l-.leveiith  Aineiidinent  wa>  pa-ed  t^  prevent  a  repeti- 
tion oi  the  outrage.     To  tho^e  States  which  t..Mk  a  low 
view  of  their  moral  obligation^  the  AiiiendineiU  proved 
a  charter  ..f  lihertv,  and  several  were  accordingly  relieved 
,,f    coiiMderaMe    llnancial    eni!)arras>ment.      X'arious    at- 
tempts to  circumvent  the  Amendment  were  defeated  hy 
the  Supreme  Curt,  which  refused  to  allow  a  State  to  he 
sued  except  in  ca-es  wliere  the  creditor  had  unreservedly 
assigned  hi-  interest  to  another  :^tate.' 

It  h.Uows  that  a  State  can  only  he  sued  hy  another 
State,  or  hy  the  L'nited  State-.  ..r  hy  a  foreign  State. 
]■■,  ,r  vari.'u-  rea-ous  ir.tcr-State  -uit-  .iri-iiig  out  .it  money 

atters  are  n-t  cnmmoii,     in  the  lir^t  place,  the  C'uu-titu- 
,  \n,    I.   Sec.    Ill)    fnrhuN  the   States  tu  enter  into 
iiuiding  ai;reeiiients  with  one  aiiniher  with-ait  the  coii-ent 
Secondlv,  exiierieiue  ha-  tau.uht  the  people 


m 
til  111 


I  if  Loiigres- 


less  of  their 


t,,  look  with  uieat  su-picioii  upon  the  reaMiiie- 
leL;i-latuie-  n.  incur  indehtediuss.  and  nio-t  <.l  the  State 
Lonstiiuti..iis  iiMsv  (..intain  -Iringeiit  re-trictioiis  upon  the 


I  J  Dallas,  4nj.    Sci'  i).  '>.  H'ttc 
-  Sec  p   'J>  iiiil,-. 


60 


TIIK  Riao\  I:KV  ()1^  si  All'  I^KHTS  (n 
power  nf  the  Ic^.^liture  t„  pled-'  tb-'  >  .v.lit  of  the  State^ 
Not  onlv  are  the  purpn^es  tnr  whu-h  debt  may  he  UK-urred 
very  -^trktlv  defined,  hut  the  ('(m.^titiuiun  UMially  rc(iuire> 
that  the  b<.rrMw,n-act  drdl  pmvide  i-r  a  smkui-  fund  to 
pav  off  the  deht  iti  a  few  >ear-.' 

A  few  ca-e..  however,  have  ari^en  ni  which  actmiis  tor 
debt  have  been  niaintaincl  a-ain^t  a  State.      In  Cnit.;! 
States  v.  Nm-th  Laroliua   (  iS.jo)-'  the  I'cderal  ( .ovcrn- 
mrnt  sued  for  the  intere.-t  .hie  up-n  147  tlmu^and-doUar 
iH.nds  of  the  Slate  after  the  bnnd^  had  bee. . me  j.ayable. 
The  State  had  belatedly  paid  up  the  principal  .um  due, 
t,)-;ethcr  with  mtere-t  t.,  the  date  of  maturitv,  s..  tb.e  only 
.piestion  remaining  wa>  \vhether  itUere^l  could  be  cUume.l 
for  the  period  between  maturity  and  actual  payment.     As 
a  matter  of  law  between  private  individual  there  culd 
be  no  doubt  upo.n  the  matter.     If  a  man  will  not  pay  his 
debts  when   thcv   are  <lue,  he  mu,-t  be  prepared  to  pay 
interest  for  ^uch  time  a^  he  cb.oo.e~  t.,  remain  m  arrear. 
The  Court,  h'  wever,  held  that   where  a   State  wa-  the 
debtor  the  .  :rdiuarv  doctrine  did  not  apply.     Mr.  justice 
Crav,  speakin-  for  a  majoritv  of  the  Onirt,  o  n^dered 
that  the  diLniitv  ..f  a  suverei-n  power  wa~  inv(.lved: 


"  Interest,  when  not  stipulated  for  by  contract  or 
authorise.I  bv  -;:itute,  i<  alloued  bv  the  Courts  as 
damaf^es  for  the  detentiMU  i'i  m-nev  or  of  property, 
or  as' compensation,  to  which  the  d.eien<Iant  is  en- 
titled •  and  as  has  been  settled  on  ^rounds  ot  public 
convenience,  is  n^i  to  be  awarded  a-ain-t  a  sovcr- 
eien  rovernmeut.  unless  ,ts  consent  to  pay  interest 
c,n  manifested  bv  an  act  nf  its  k-islature.  or 


has 

bv  a  lawful  contract  oi  its  executive  < 


.fh 


ccr- 


iThc  Fiml.^l.  rouUr  w,ll  fin,!  a  rharactrristi.-  example  "f  "ip'p 
proJiLs  in  the  C-.mstitu,,..n  of  < '•^'•'•---  ^  J-'"  '^  "^'"••■'  '" 
llryces  Awrnc(V!  CowKUVK.rnllh.  vol.  1.  pp.  /35-'>- 

::  1.^6  U.  S.,  -'II. 

■>  136  U.  S.,  216 


62  .\Mi:i^i("\\  sri'Ki-MF,  rorin- 

The  liiiiifls  in  (|m'-ti.in  wcri'  iiiade  iiayalik-  in  N\'\v  ^'ork. 
and  bv  the  law  m  that  Stati"  intfrt--t  i-^  ]);i\ahU'  nn  ln'nds 
after  maturitv.  X'.rth  (.'ar'.lina  liad,  however,  made  no 
sue.  .  .-ovisinn,  and  the  (  mirt  lield  th.it  the  ea^e  was  to 
be  pjdverned  1)\  lier  law  - : 

'■  ("ontraet^  are  to  be  -nverned,  a>  to  their  nature, 
their  validity,  and  their  interpretation,  by  the  law  of 
the  i)laee  where  they  are  made,  nnless  the  eontracting 
partie-  appear  to  have  ha<l  >ome  other  plaee  in 
view."  * 

Judgment  wa-  accordingly  given  against  the  claim  .  f  tlie 
United  States. 

United  Stdtrs  v.  Mich'ujan  (  [<>o,^ )  "  was  a  ea^f  where 
the  United  States  claimed  to  be  repaid  the  b.i.inct-  of 
certain  nionevs  advanced  to  the  State  for  the  building  of 
the  St.  Mar\'s  River  Canal  at  the  lower  end  ,,f  Lake 
Superior.  The  Federal  (iovernment  liad  granted  to  the 
State  7^cj,(K><i  acres  of  land,  which  were  t"  be  sold  to 
provide  a  building  fund.  Out  of  tlii>  fund  the  canal  was 
built,  withiiut  any  expense  to  Michigan,  and  the  costs  of 
operation  were  met  by  the  levy  of  tolls.  When  the  work 
was  completed  a  considerable  sum  remained  over,  and 
this  surjilu-  Michigan  proposed  to  reUiin  lor  her  own  use. 
The  United  States  contended  that  the  whole  fund  was 
impre.ssed  with  a  trust  for  the  sjiecific  purjjose  of  building 
the  canal,  and  that  the  State  was  therefore  !>ound  to  repay 
the  surjjlus  remaining  after  the  canal  had  been  1  uilt.  The 
decision  of  the  case  necessarily  turned  upon  the  wording 
and  intention  of  the  relevant  -t, antes.  For  our  purp'  ~e 
it  is  sufficient  i"  summarise  the  result  in  the  words  uX 
Mr.  Ju-tice  Feckham  : 

"That    the   partii.-    Mipjio^ed    the   cost    uoulu   be 
borne  b\  il'.e  I'nited  State-  i-~  jiroved  bv  an  examina- 

1  Ibid  .  J22.  -  ''"'  ^'-  •'^•.  .CO. 


"^ 


^'3 


Tlli".   KFaOXMKV  ()!'   STATl.   Dl'-lV 

tion  oi  the  statute-,  an-i  n  it  l.c  .i  fact,  it  ^'-_  .■•^;^  J" 
show  that  tlK-  Stat,  wa-  ni  thi-  ^^l^''"^],^^^:;^^ 
effcr.  and  sub^tar.cc  as  au  a;4.nt,  <  r,  m  "^'^^^  '^  ;• 
as  a  trustee  fur  the  United  States,  and  th.it  the 
"amaction  was  not  to  he  a  source  ot  P-t^t  to  - 
State,  hv  reason  of  gettniR  more  trom  the-  United 
States  than  it  would  cost  to  budd  the  canal. 

The  principle  tmderl>in,^  the  decision  was  thu.  defined: 

"  Where  word=  are  anihij^uous.  legislative  grants 
nn,-t    he    interpreted    must    strongly    against    the 
^::^;ee-ut.W.Mhe(;.vetimtent.and|^^^^ 
extended  bv  implication  m  tavour  o,  the  grantee  be 
vnn.l  ,he  natrral  and  obvious  meaning  ni  the  words 

eS-1     "">--'''^"^^ 

grantee  .md  in  favour  ot  the  public. 

The  facts  in  t'.o  case  of  South  Dakota  v.  .\orth  Caro- 

/,•„;  ,  n,04  )  ■  have  alrea<ly  1  een  briefly  noticed      I  he  case 

:   ^,^f;!ms..f  intere.t.  neither. d  which  be. n.>pn.p- 

.  ,v   to  L   presem  ch -ter.      In  the   in^t   plao.    it   .as 
;^ntedthJthejurisd,ct.onofthe.-,,urtwasou~tedh^ 

Z  Fleventh  Amendment,  a-d  th.^  point,  as  we  have  seen. 

vsdicled  in  fav   .r  of  the  plaintiff.     The  other  „ues- 

::  lich  the.. un  ha  It.  consider  wa.i.y. hat  mcjm. 

eould  make  it^ud,^   cnt  effective,      1  o  this  we  .ha 

return  later.     Upon  the  merits  „f  the  controversv  V^rth 

S::Hn:hadn,/defence.    ^^---'^  ^f^^  ^^f  ^l^ 
u  „,i    \v-i-;  Ion""  ovi  'due,  ana  ttie  acji 
inti-rest  unon  tne  bumb  \\a>  inn., 

S^feffect  been  repudiated  bv  the  State.     Ihecpiestion 
o::;:dictionhavmg  been  decided  mfav^ro.te  plam- 

J.  judgment  for  the  st-nt  due  necessarily  ^;^-- 

It  has  alreadv  been  nv.ntioned  that  m   .S„  C-ngre  s 
establi«:."U.uri  of  Claims -Mor  the  jtuiicial^^^^^^^^^ 
ntent  of  contractual  and  simdar  cla-ms  again.t  th    Ted 
eral  authoritn..s.     Prior  to  this  .\ct  the  .nly  remed>  o.  an 

-Ibid  .  401. 
^Z[::i:i^    Seep.  .1.. ."'<-.  ana  p.. ».r-'. 


r,4 


A.Mi'KUAX  sriM^i-Mi:  (■(  »nx'i- 


tlu'  i'liini^\    am!  tin^ati-iact'ir\' 


af;.!:;ricvc'(l  citi;^cii  was 
method  (if  a  jictitinn  tn  ('"ii^L^rr--  i'mt  rcdrr^--  nf  his  Lrrirv- 
ances.  In  1SS7  the  Suiircnu  ('  n'.rt  hi'ld  in  I'liitril  Sttilrs 
V.  Louisiana  '  that  the  Statc>  nii.^ht  avail  tb.em-.elves  df 
this  tribuna!,  witli  a  ri.cjht  cf  apv'i-'al  In-  cither  partv  tn  the 
Supreme  Cnuit.  It  will  he  e^-nvenicnt  t^i  .c^roup  t'  ^ethcr 
here  the  few  ca^es  in  whicli  States  liavc  availed  them- 
selves of  this  ri^'ht. 

The  facts  of  I'uitni  States  v.  Luttisiarui.  whieh  reached 
a  final  deei-^ii'n  in  iSSS,-  are  in  thein-elve>  nf  little  in- 
terest. The  claim  <.f  the  State  wa-^  fi  r  -iims  due  to  her 
under  certain  Acts  oi  ('ongrcss.  wliich  had  allocated  i)art 
nf  the  proceed^  nf  the  sale  oi  T'ederal  lands  to  he  aiijilied 
for  the  carrvini;  nut  of  pnhlic  improvements  within  the 
State  territnr\-.  This  liahility  was  admitted  hy  the  L'nitid 
States,  hut  it  was  claimed  to  set  nff  aj^ainst  the  amount  of 
tills  deht  cert.'un  unp:nd  taxes  due  from  citi;^ens  nf 
Louisiana  tn  the  h'edcral  Trea-ury.  The  taxes,  hnwever. 
were  due  frnin  the  citizens  individual!  /,  ;tnd  not  frmn  t!ie 
State  as  sncli.  The  Court  therefore  held  that  these  sums 
could  not  he  '^et  otY  ac,s-iinst  the  money  due  frnm  the 
United  State-  tr>  Louisiana. 

More  succe^-fu!  was  the  c!ai:'.i  nf  tlie  L'nited  States  to 
set  off  the  amounts  due  upon  certain  State  hnnds.  The 
Federal  (lovernment  held  a  larc^e  numljer  of  Louisiana 
hnnds,  upon  wliich  the  interest  had  not  been  paid,  .'^ince 
this  was  a  Ii;d)i!itv  of  the  State  itself,  a-  di-tinj^in'slied 
from  its  citizen-,  the  Court  held  that  it  must  lie  -et  nff 
against  the  delit  i!ue  to  Louisiana  from  the  United  States. 

In  189,^  a  similar  claim  was  lirnuc^ht  l)y  the  State  of 
Indiana,"   ha-ed   upon  certain    .\cts   of   Con^^re-s    whicli 


'  123  U.  S.,  .u. 

-  IJ7  I'.  S.,  182.  Tilt-  nanic  of  tin-  I'liitcil  Status  appears  fir.st  in 
the  title,  .since  the  Federal  Goveriimv'nt  was  appealing  from  the 
decision  of  the  Court  of  C liinis. 

••<  mS  U.  S.,  14S. 


■riii'.  Ki:(()\im-  ()!■  m  a  i  i-  i)i:r.  r.s     o-^ 

(Invctrii  tlu-  -a^'■^  ni  ])iil)iic  laml--  tc  ]>v  appliril  m  tlif  cti- 
.>triu'li<in  III  na'i'iial  fiad^  tlir'Ui;:,!!  Iiriiaiia  and  i  'her 
States.  The  ca^c  rf(|uircs  unly  tlu-  hrii'lest  notice,  fur 
the  Court  found  that  the  cost  df  eonstruetiiif::  the  roads  in 
Indiana  qreatlx-  exceeded  the  -urns  ari^inj^  n\n  of  the  sale 
of  land-.     The  claini  of  the  State  snhscquently  failed. 

The  ea>e  nf  I'mtcd  Siaics  v.  Xcw  YcrJ:  (  iS()ii)  '  may 
he  compared  with  tlie  case  of  L'ltiird  States  v.  Xcrtli 
Caroli>u!.  already  iinticed.  The  claitn  of  the  State  was 
based  ninui  an  Act  of  ("onj^ress  ol  iSdi,  which  directed 
ih.e  Trea-iirx'  t  i  reiinlnir-e  the  State-  t!ir  e\pen-e-  the\ 
mi;,dit  ir.ctir  in  raising  continLients  f-r  the  Lilian  armies 
in  the  Civil  War.  X'cw  ^■|.rk  had  rai-ed  the  money  by 
borrowing-,  and  the  main  que-i'.^n  in  the  ea-e  was 
whether  -he  wa-  entitled  t^  lie  repaid  the  intere-t  in  the 
sums  borriiweil  a-  part  ni  her  "en-l-,  charges,  an;!  ex- 
penses proper!}  incnrretl  "  under  the  .\et  <if  1861.  !  lie 
Court  di^tingui  bed  tlie  Xnrth  Car<i!ina  case,  and  upheld 
the  claim  of  i!ie  State. 

"It  ennld  not  liave  biirrnweil  nmney."  >aid  ?\lr. 
Justice  Harlan,  "  an\  ni'  re  than  tlie  ( ieneral  ( 1  vern- 
raeiit  cnuld  liave  liorrnwed  nii/iiey,  witliout  -tipulat- 
itig  til  pa\-  -nch  intere.-t  as  w.a.s  customar_\  in  tlie 
fominereial  wnrld.  Congress  did  not  exjiect  that  any 
.'tate  would  decline  to  burrow  and  await  the  collec- 
lii^n  of  mone\  rai-ed  by  taxation  befure  ii  m'  ved  to 
the  support  of  tlie  natinn."  " 

South  Carolina  v.  I'uitcd  States  C1905)  '  is  a  -some- 
what jieculiar  case.  P.}  various  statutes  the  State  t'iii!< 
over  the  whole  business  of  the  sale  of  lifiuor  witlini  its 
l)orders,  .-.nd  prnliil  ited  the  -ale  of  liipaT  except  li}'  "  dis- 
pensers." who  were  State  olTicials  without  any  financial 
interest  in  the  prnfits  nf  tlie  !iUsiiK>s.  Ihit  tlie  L  nitcd 
States  also   wa-   interested    in   regulating   the   trade    mr 


^  \(m  r.  S.,  -(>'■'. 
P.  4545 


i'ki   L' 


S..    f.-M. 
1: 


»  lyj  C.   S.,  .(3;. 


66 


.\.\'i:Kir\\  sii'Ki'.M!".  cnrin" 


-1(1  a  liccnrc 


revenue  pnrp(i?c^.  a'   1  I'l'ikTal  -tattitcs  uii! 

taK  up.-n  all  retail  dealer^  in  wine  ^r  ^iiint>.     F..r  some 

vear>  the  Stale  ;-aul  the  !-\Mlcral  tax   t^r  it-  .li>i.ensers. 


(.■ntere<l.  and  thi<  developed  into 
f  the  sum? 

L'nder   the 


hilt  in  I'll 'I  a  prwte-t  wa 

the  I'iurt  .1  Claini-  t  >r  the  return  uf  the  sums 


a  -mt  m 
paid. 

TIk'  (lue-tiMii    wa-    of   --me    inii)nrtanoe. 
AiiRTican  Cun-titnti.Mi  the  p-uer.  i)..th  mI  the  Xatinnal 
and  ..1   the   State  ( iMverniueiit.  are  sharply  marked  .ait, 
'and  the  Supreme  (  ■  nrt  had  ]■  w^  a:^n  held  that  neither  m 
these  o.uld,   under  enlnur  -t   taxati..n,  he  permitted  tn 
inleriere  with  the  legitimate  aetivities  ..1  the  other.    Thus 
in  McCu!!''Ji  v.  M„ryhnid  (  iSd)  '  the  Court  had  di- 
allowed  the  attempt  of  a  St;"e  to  tax  the  .peratmn-  of  a 
national  hank,  and  in  77,,-  L-IUrtor  v.  n.iy  (  i^7n)  "  it 
had  ruled  that  Congress  couM  n-t  tax  the  -alar>   of  a 
State  iud'.;e.      ilie  pre-ent  ea-e.  h.^uever.  api^eared  1-  the 
Ce.urt'to  rest  upon  a  different  ])rineiple.     .A.hnittm-  that 
Congress  couM  r.nt  lawlnllv  t.ix  the  -nvernmental  aetivi- 
tives  of  a  State,  tlu'  Cairt  nevenhele-s  held  that  in  as- 
snming  ^^  nionop,,ly  .,f  the  lupi-r  tr.ad.c  South  Carolina 
h':d  so  far  disear.ied  her  pMlitieal  ehaia.'ter  .nul  had  ac- 
cepted the  -t.itu-  of  an  ordinarv  trader,      idie  Con-titu- 
ti..n.  in  tin-,  pini.  n    .1  the  C-nri,  mti-t  he  ad.apied  t- meet 
conditions  that  culd  never  have  hecii  pre-ent  t. .  the  mmd- 
of    its    franiers.      Olherwi-e    the   irrowin-   tendency    ..I 
States  to  enL^a-e   in   hu-me-   ac'ivities  mt-ht    result    in 
rn'idcriiiLr  inetfo  tue  the  .-eater  jiart  ,■!   hedcral  ta.xatioir 
.\  majoritv  of  the  C  ourt  accordin-ly  lield  dal  the  State 
di-pen-ers\vcre  liaMe  to  the  tax.    Thnc  ju.lges  dissented 
from  this  deci-ion  .  m  the  <^r<  und  lii.a 

"  ]\\  ilie  ruling  and  the  rea-ming  su-taining  it  th.' 
aneien't   landmarks  are  ..hiiterated  and  the  distinct 
powers  LelonginK  to  both   the   X.itiond   and   State 
.,  VVluatoM.   o(..  ■"  ^^'^'"•■'^'•'  "•' 


Till".  K'.A  ()\i-.m'  oi"  siAii:  oKivrs     67 

(juvcrnnu'iits  arc  rt'ciiimcallv  placid  the  ^ 'MC  at  tlic 
mcrcv  1.1  the  nthcr,  -n  as  to  i;ivc  to  each  the  potency 
of  (lc>trii\iiiL;  llic  i.thcr."  ' 

Tin-  mo'-t  inip-vtaiit  ..f  all  the  State  delil  ca-is  i^  that 
of  I'iriiiu'hi  .-.  \\\-sl  I'lri/iuui.  which  \va>  enteral  ill  the 
Sujirenie  ('■■ui-t   ni    mod.-   aiwl   ha>  hei'ii   reappe.ann-   at 


frequert   iiitervaN  iiji  t"    I'l 


S.      It   ha>  it-  ri>(ii>  in  tlu 


-real  cniillict  .  f  the  ('ivil  \\  ar,  ami  until  latel\  threatetu,! 
to  confrdiU  the  Siii'.reiiie  t'.uri  with  the  ]'t .  ihleiii,  .mi  Icii^ 
evaded,  df  h"\\  a  linal  judi;inent  i--  to  he  eni'Tced. 

The  circr.in-t.-nice-  leading:  i;p  \"  the  i.irinatinii  >■{  Wot 
X'irgiiiia  have  already  iieen  hrietly  iMticed,  and  vc  have 
seen  how  in  the  t'n-t  1:.  -mt  hetween  the  two  State-  tlie 
l)olitical  (.wner-hip  'i  two  di-pnted  CMnntie-  wa-  ail- 
judged  tu  We-t  \  n--i'iia.  The  pre-eiit  claim  m|  \'ii-inia 
arose  out  ni  the  f;ict  that  her  a--enl  to  the  innnatiMU  ot 
tlie  new  State  wa-  i.lilained  nuly  upon  the  di-tuict  under- 
taking of  the  latter  t>>  -In  mlder  a  fair  -hare  n\  X'lr.umia'- 
pre-war  laht.  The  term-  ..i  the  undertakin.L;  were  tlui- 
CNpre--ed  in  the  iiiimIi  ..rdmance  nf  the  Wheehn,;  Con- 
vention (if  iSoi  : 

"  The  new  Slate  -hall  take  uiii'ii  it-el  I  .a  jn-l  jiro- 
porti-n  nt  the  pnhlic  deht  oi  the  (  "innr  .iiwe.dih  ui 
X^ir-nua,  iiriMi-  i,,  the  tTt  da\  oi  Januaiv.  iSoi,  tn 
lie  a-cert,iiiud  In  .iiar-in-  tu  it  all  State  expeiidi- 
ture<  within  the  linm-  thereoi.  and  a  jn-t  prop-rti'ii 
,,l  the  ordinarv  ■,  \pen-es  of  the  .^t.ile  --virnment. 
Mir.'e  aii\  pait  .-1  -aid  dehi  wa>  contracted;  and  de- 
diutuiL;  iheietr.'in  die  niMine-  p.aid  into  the  tre.i-nrv 
,  ,•  ihe^!  .'niin-nwealtli  ir.  in  the  countie-  includcl 
uilhin  tlk   -aid  new   .^t,.te  .Inniur  the  -anie  peri-d." 

The   c.hh-ath.n    thu-   nnderLiken    wa-   reaflinned    in    the 
eif^hth  article  of  tlu-  \\\-t  Xu-inian  ron-tituii<M> ; 


68  AMi-.Kl'    \\   sL-i'Rl'.Mi',  (CrKr 

••  \no'nit:il>lci.r..p,.rtiMn..i  the  pnl=i;c -U!  ;  -1  tbr 
CnmniMnufalth  -i  \  ir-inia.  prinr  t..  tlio  first  (lav  ..t 
lanuarv,  i'l  \hv  M'amtu'  th'T.an.l  ci.^ht  lniiv!rc(  and 
Vixtv-nnc.  -hall  W  a-umod  In  tins  Mat.' ;  -nv]  tlv.- 
ic'M^latnrr  shall  a-.utain  ihv  sanio  a-  :■-"  a-  may 
ht^practical.k'.  and  pr^  vidr  fnr  the  h.,nidatMn  there- 


ii 
vrar 


rnnv. 


f    hv  a  sinkin-  tnnd  ■  utt'iricnt  \o  pi\   tlv.'  a 
itVrt'st.  and  redeem  tlie  i  i  mcii-al  unhm  ihirtv-lMui 


]••,„■  more  tha,i  l.Tt>  vear-  Mri^inia  did  all  m  her  p^^v.-er 
In-  fnendlv  ne-Mt,ati.  n  I-  ni.hice  the  ynunt^er  ^tate  tn 
.,ttle  the  .hliL;atiwn  thu-  M.kmr.lv  mntraeted.'  All  these 
HlMrts  proved  unavailing,  and  m  im^o  Xir-inia  tonk  the 
matter  t.,  the  Sni^reme  lA  nri.  in  the  next  vea-  the  ea-^o 
was  arune.l  np-n  the  .inestion  m  jurisdietinn.  and  the 
d.emnrrer  mI  West  XMr-ima  tn  the  iuris.lietinn  uas.  as 
ue  have  alr.adN  seen,  .overruled.  In  im<S  the  ( '-nrt  ap- 
pointed a  master  to  settle  the  lorm  0,1  the  aeo.nit,^  siv- 
,„.  him  wide  p..uers  to  einpel  the  product,.. n  .d  ah 
nccessarv  evidenee.  The  report  o,  the  m.ister  rune  1k-- 
fnre  the'c.  nrt  m  w»M.  an,d  uas  -trenu-uslv  rest  ted  hv 
c-un^el  t..r  W. -t  \  ir;;'ma,  hut  then-  ..hje^tions  .1„1  iioi 
prevad  i  lu  (  -uri  reiusid  at  tin-  sta.^e  t..  pvoeeed  t;.  a 
tinal  .ieeree,  e,  .nlenttn.L;  Hsdi  uuh  la'-m-  d  wn  s,,me 
miuiiiiK  i)ruKiples  mr  the  valnatr  -i  oi  the  deht.  tn  l,e 
worV-ed  out  in  detail,  it  need  he  hs  the  masi,  r  i'ut  ,1 
Mn.n"  h-ju'  ^^'-'^  expressed  that  the  i<,.rt,es  nn:dn  reaeh 
an    aJrevnurit     vxhuh    would    rend.er     furtlier    lit,-atr>n 


neeiHess. 


"This  case."  said  Mr.  Justice  Holmes,  "  1-  -ne 
that  calls  fnr  fnrl)earanee  upon  hch  sides  (.r.at 
States  liave   a   temper   superior   f..   llat    of    ]iiiv.ite 

'  Set  the  ri-nutliv  nf  llu-  Cii.irt  \\\»>n  litis  pnnit.  |>.  -T.  ""'«" 
'JOQ  U.  S..  51  J. 
»jj<>  U.  S..   I. 


THE  RFaOX'F.RV  of  STATF  DEBTS       69 

litij^ants.  aiul  it  i>  to  lie  \\u\)a\  that  ciuiu'^li  ha>  been 
(K'cuk'il  l<T  patriniiMii,  the  iratcriuty  of  the  L'nioii, 
and  mutual  conbideratiun  to  Ijring  it  to  an  end."  ' 

'I  he  hojirs  of  the  Court  were  de-^tined  to  di^ajipoint- 
nieiit.  \  ir.i;nua  .  :  once  atteni])led  to  arrau.L^c  a  conler- 
enee  with  the  ^\■e.>t  \'iri;iinan  anth.  >ritie>,  hut  the  (lov- 
ernor  of  We^t  \'irj,Mnia  faded  t..  re-jioud.  Aecordinj;ly, 
in  (JctolK-r,  \<)\i.  \ir;;inia  a^ain  apfjeared  l)efore  the 
Supreme  Court  with  a  nuition  jtrayinL::  for  a  speedy  hear- 
ing; and  determination  of  thi'  ea>e.  'l"he  Court,  always 
ver\  tender  in  it^  dealinL;>  with  States,  refu-^ed  to  hustle 
\\'e>t  \irginia. 

'■  A  State,"  said  Mr.  Ju-tice  Holmes,  "  cannot  he 
.■.\])ected  to  move  with  the  celerity  of  a  private  busi- 
ne^s  man;  u  i->  cnoui;!!  if  u  proceed-^,  in  the  l.m^ua^^e- 
of  the  lMiL;li>h  Chancer)-,  with  all  deliher.ite  sneed."  ' 

So  the  ca-^e  wa^  left  to  await  the  ineetm;^^  of  the  le^i>- 
l.ttm-e  of  W'e-t  \'ir,L;ima  ni  ordinary  --es-ion  in  January. 
MM.^  W'luii  the  lei^i-lature  met,  it  did  at  la-t  appoint  a 
coinmisMon  to  deal  wuh  the  (piestu  -i,  hut  m  the  cour-e  oi 
a  few  months  Xii.Liiina  decided  th.it  even  thi>  new  move 
,t;ave  little  inoniiM'  oi  a  -ettlement  lii  (  )i.tol)er.  there- 
fore, -he  a;;ain  moved  the  Svipieme  Court  for  a  speedy 
deei-ioH.'  \\  e-t  \  irumi.i  ll,eren|i"n  .i-ke.i  tor  ^is 
m  iiitli-  more  time,  whuh  would  have  meant  earryu\i;  tlu 
ca>e  over  to  the  next  term,  ,uul  reall\  dela\in'^'  the  de- 
cision  h\  another  \ear;  the  (oui!  aeeordiiiL;l\  till  her 
tliat  -he  mi!-.t  Jje  ready  vsuh  her  an-wer  m  live  months 

linn- 

Wh.i:  ih,-  live  m-'ith-  h.id  pa--i'd.  We-t  \'iri;inia  :e-ked 
for  \el  anotlier  po  .tpouemeiit  to  enable  lu  r  1^  <  tile  a  "  -Uli- 
l)lemuii.d    answer."'      With    .1    l-leiam.     uhicb    would 


'  jjii  V    S.,  JC>. 
*jjj  V.  S.,  ly-ao. 


«jj4  U.  S..  11;. 


lo 


.\M1".KHAX   S'jrKl-.MF.  COURT 


m-viT  have  hww  (.•Mi'iuled  h^  an  Mrilinarv  litifjant  '  the 
("nurt  ,t;ranii,(!  ihi>  request,  and  the  ca-e  was  rctcneil 
liack  Im  tlic  ina-iiT  with  .1  ecliMn-  to  have  lii-  rep^Tt 
ready  hv  (Ki(il>er.  \^)\  \.  In  the  next  year.  ;ill  tnethdds 
of  delaxiii,;;  tlie  deei-i..n  hein-  now  exlian-ted,  :he  case  at 
last  eanie  on  i"or  tnial  hearin-'  on  the  ([ue-tion--  rai-^cd 
the  nia-ter's  report." 

'I'lie  Court  liad  ahcadv    held  in    Kiii    that   We-t   \'ir- 
i^nnia  \va^  hound  liy  eontraet  to  pa\  whatever  A\'    M  turn 
.,ut  to  he  tlie  correct   -uin.  and  the  present   ]>- oceediiiRs 
tlierefore  re-^olved  themselves  into  an  ar^unient  u])on  th" 
correctness  of  the  items  set  forth  in  tlie  report.     One  or 
two  points  decided  are  of   'general   intere-i.      \\      t    \  ir- 
f,nnia  claimed  that  cenain  heavil}    deiTcciated  st>    .<  held 
hv  \'ir,LMtna  dionld  he  valued  at  -lie  Mim  oriijiiialiy  pau; 
for  it.      The  Court,  however,  decideil  that   it  must  l)e  as- 
<es-ed  accordin!.r  to  it>  a(  tual  value  on  the    i-t  January, 
[Sdi.      in   favour  of  \\\'>t   Xir^en.i  it  wa>  held       at  she 
\.as  entitled  to  a  pro]iorti^  n;ite  -h.ire  oi  the  iienelit  of  an 
arrani;emt.it  which  \irs;inia  had  made  with  her  creditor-. 
.\  more  important  point  was  whether  We-t   \  irL^iuia 
-houhl  l-e  charLMd  witli  mtere-t  lor  the  lon^'  period  dur- 
in-  whiih  the  dehi  had  remaine.l  unpaid.     The  <"ourt.  it 
will  he  reinemhered,  liad  ^lreatl\  held  that  a  State  ca.nnot 
lie  chav.^ed  with  interest  except  hy  it-  own  consent.      That 
heint^  so,  the  (|ne-.tion  hec.ame  one  of  llh'   mter|iretation 
of  the  contract  helween  the  two  Sl.ite-,      AhhoUL^h  the 
aj,'reement   in  ihi-  ca-e  contained  no  expre--  provi-ious 
r>'!atini;  to  intere-t,  the  Court  helil  that  u]»on  its  "fair 
iiilendment  "  xVx  pavmenl  of  interest  was  contein]ilated. 

"  Tlure  1-  no  e-iape  from  tlie  conclusion,"  said 
Mr  lustice  lIuRhes.  "  that  there  was  a  contract  duty 
o-.i  tlte  part  of  West  \'iri:;inia  to  |)rovi(le  for  .iccruiuij' 

'  For  tlu'  retnnrks  of  the  Cmirt  upon  this  point,  mt  v    n>H.  ^(>.J/. 
*  238  U.  S  .  jnj. 


THi':  RK(  OVl-.RY  OF-    ST  AT  I-    DF^BTS        71 

interest  as  a  j^irt  ni  the  njiuitblc  proportion  as- 
Mtniecl.  an!  that  it  would  lie  hii;hly  inecjiiitable  a^ 
betwei'ii  the  iwn  ^'tatcs  that  \  iri;inia  a  to  her  share 
should  l)ear  inte^.st  eharges  lor  the-e  fitty  years 
while  West  \  ir^iina  on  her  part  .-hnuld  siiniily  pav 
a  percentaj^e  of  principal  reduced  liy  the  credits 
ahich  ha\c  been  all  iwed."  ' 

\'ariiiu>  otl^  T  questions  of  accouniu'<;  haviui^-  been  sinii- 
larlv  cleared  up  the  ("uurt  linaliy  assessed  t'.ie  nuiebted- 
ness  of  West  Xirj^inui  at  the  sum  i)f  Si  _',,v;,v9-9-5o. 
The  decree  further  jjrdvided  that  thi>  -um  sliuuld  bear 
iiuerest  .r  the  rate  ui  live  per  ce...  until  it  was  paid. 
The  costs  were  to  be  iqually  divided  between  the  two 
States. ■ 

This  decree  wav  pr-  nnnnced  on  the  14th  June.  1913, 
and  ihc  sub^c•c|Ul-■nt  pv.icceilinj;>  ni  the  case  belin^  more 
|)n)pcrl\  t<i  another  chapter.  The  aIihIc  ca-c  lcave>  a 
somewhat  unplea>ant  impressitm  cm  the  mind  of  an  cut- 
side  ob.-^erver.  Xothint;-  c-  aid  be  niure  --cilcnin  than  the 
aj:^rccnient  by  wliich  We-~t  Virginia  e\prc-d\  underttink, 
as  a  C'lnditinn  df  her  indcpeiiden<'c,  tu  bear  a  fair  >hai\ 
of  the  pre-war  debt  nf  the  jtareiK  State,  and  pr. 'mi>«.d 
that  her  legislature  vlmuld  a-certain  the  exact  ainninit 
"as  soon  a^  ma\  be  ]iracticabk',"  N'et  i^r  forty-three' 
year-,  --he  I  ok  n-  -tip^  wh.itever  to  di-char,L;c  this  sok-nni 
obli.L^ation.  When  the  matter  wa--  brought  into  the 
Supreme  I  ourt  We-t  X'lr^mia  lir-l  of  all  den;  1  the 
jurisdiction  of  the  tribunal,  and  then  mteipo^cd  e\er\ 
di!.itor\  motion  th.u  the  inmnuits  of  her  eoun-el  could 
.^u,L;s;e^t  to  ])ost[.  ic  a  decision  of  th'/  oi-e  upon  the  nierit>, 
1  he  attempts  of  X'ir^i'iia  to  se'th'  the  niattir  in  an  ami- 
cable ciiuferer.ce  met  \Mth  m  .  real  response,  in  ^|iiti  of  the 
fact  th.it  tln^  course  w;i--  -.ui:l;i -led  on  thr  ;iulhoritv  of 
the  (  oiirt   it -elf      I'in,ill\-.   she  h.i^  ;i11o\m(1   nc.irlv    four 


i-jjH  U.  S..  .'.((.. 


-  Jj8  U.  S.,  J4- 


72  .\Mi-:!<HA\"  sn'Ri:.Mi-:  roL'irr 

years  to  elap-e'  >iin.'i-  \hv  pr. .umiukuiu'iU  <i1  i1k-  (k'CTfc  hu- 
I'l.ri;  takiiiL;  any  >to]i-  t'^  rnidcr  il  olit-'dieiicc.  In  the  ca~e 
(il  a  private  indivi'lual  ■  iv  a  c-iunicrcial  i^  mpaiiy  -uch 
c.iiKUKt  w-uM  .l..ul)tk>s  ca!!  iLwn  :\  rc!)uke  which  the 
C.iir;  i    uiiwiUin',    In  aihiiini-ter  tu  a  Slate  ui"  tlie  Uninii. 


->^'   . 


CHAPTER  V 


CASl-lS  Ol-    IXJUkV  liV  STATE  ACTION 

TiiKKK  remain  to  l.e  con-idLTed  five  cases  in  which  the 
political  actinn  ,1"  an  American  State  has  been  challenged 
in  the  Supreme  Curt  as  an  injury  tu  the  rights  ut  its 
nei^hl)iiur>.  _     . 

The  tir-t  of  the>e  case-  is  that  of  Chi-rokt'c  Xation  v. 
Gcoryia  {1831  ).'  which  would  have  raised  ciuestion.  ui 
the  highest  interest  and  importance  had  not  the  Court,  by 
denying  the  jurisdiction,  prevented  an  incpiiry  into^the 
nierit>  of  the  Indian  complaint.     Thi>  deciMon  rented  on 
ilie   rather   narrowly   technical   ground   that   the    Indian 
tribes  were  not  "  foreign  States"  within  '  le  meaning  of 
the  Constitution,  but  were  rather  what  .Mar>hall  described 
as  '•  ward-  oi  the  United  State-."     The  strc.ng  min-nty 
which  disapproved  of  thi-  ruling  included   Mr.   Justice 
Story,   a   jurist   whose    fame   i-   -econd   only   to  that   '..'f 
MarTiall  in  the  annals  of  American  jurisprudence,  and 
if  the  .[ue-tioii  had   ari-en    forty   year>  later,   when   the 
Court   felt  more  >uve  of  it>  position,  it  is  probable  that 
the  iuri>diction  would  h;ue  been  entertained.     That  the 
-vmpathie-  of   the  whole  Court   were  -tr.,ngly  with  'He 
Indiai     is  clear  from  Mar-hall's  words: 

"This  bili  is  brought  bv  the  Cherokee  naUon. 
jjraving  an  injunction  to  restrain  the  Siate  of 
Georgia  from  the  execution  of  certain  laws  of  that 
State    which,  a-  i-  alleged,  go  directly  to  annihilate 


»  5   Peters.    1. 


73 


74  A.MKRICAX  SL'I'RKMi:  roURT 

the  Chcrokces,  as  a  [nilitical  sdcicty,  and  to  >c'ize,  for 
the  use  of  Georgia,  tlic  land-  .,i  t'.ic  iiauop  wliicli 
have  been  assured  to  them  b\  ilic  I'liited  States,  in 
solemn  treaties  repeatedly  made  and  >till  in  force. 

"  If  courts  were  permitted  to  indulj,^e  their  sym- 
pathies, a  case  ijetter  calculated  to  excite  them  can 
scarcely  he  'nia,i,nned  A  ijcopie,  once  numerous, 
jjowerful,  and  truly  ind.cpendent.  found  hv  our  an- 
cestor.- in  the  (|uiet  and  uncontr. -lied  ]io.-se>sion  of 
an  anii)le  domain,  -gradually  -inkint,'  Keiieath  our 
superior  policy,  our  arts  and  our  arm-,  have  yielded 
their  lands  by  successive  treaties,  each  of  which 
contains  a  si ileum  guarantee  of  the  residue,  until 
they  retain  no  more  of  their  formerly  e.Ktensi^-e  ter- 
ritory than  i.>  deemed  necessary  to  tlieir  comfort- 
able subsistence.  To  preserve  the  remnant  the  pres- 
ent application  is  made."  ' 


Marshall's  words  are  a  very  fair  -unimarv  of  the  treat- 
ment actually  nicted  i.iut  to  the  Indian-,  and  since  the  case 
went  no  further,  it  is  needless  to  examine  the  complaint 
in  greater  detail.  It  may,  however,  be  dtjubted  whether 
tJeorgia  would  in  any  ca-c  have  obeyed  an  adverse  de- 
cision of  the  .'^upreine  Ciairt  in  -uc!i  a  matter.  We  have 
already  seen  w  she  successfully  resisted  the  Lhisholm 
judgment,  and  in  another  case  -'  <he  refused  to  liberate 
certain  persons  im.prisoned  umler  a  (Georgian  statute 
which  the  ("  urt  held  to  be  uncon-titutional.  The  posi- 
tion of  the  Court  in  Marshall's  time  was  by  no  means 
established,  and  the  doctrine  of  "  State  Rights  "  remained 
powerful,  especially  in  the  Southern  S'ate>.  (iei;rgia 
acted  <<n  the  principle  that  -he  (.■  uld  deal  with  the  hidia'i- 
e.xactly  as  she  pleased,  and  there  is  no  reason  Ui  think 
that  she  wndil  have  ]!;.id  any  m.jre  respect  to  a  iudi'- 
ment  of  the  Supren.;.-  Court  than  she  was  willing  to  show 

'S   Peters,   i: 


•  5    reiers,    15 

»  U'orcjtur  V.  Gtorjia  (liija),  6  Peteri,  515. 


CASES  nv  IXJL-KV  BY  STATE  ACTION       75 
for  treaties  that  pledged  the  good   faith  of  the  United 

States. 

Incidentally  it  may  here  he  observed  that  up  to  the 
present  time  n.^  suit  by  a  foreign  State  against  a  State  of 
the    Union    has   been   prosecuted    to    judgment    ui    tlie 
Supreme  (  ourt.     In   i<)!7  tl'^'  l^ei.ubhc  of  Cuba  entered 
a  claim  against  Xorth  Cari^lina  '  upon  certain  State  bonds, 
the  circumstances  of  the  ca^e  being  similar  to  those  of 
SjHth  Dakota  v.  Xorth  Carolimi.  which  we  have  already 
noticed.     Cuba,  however,  obtained  leave  to  withdraw  the 
suit  before  the  case  came  on  for  a  hearini'  (jn  the  merits. 
In  1870  C.eorgia  was  again  a  defendant  in  the  Supreme- 
Court,  the  plaintiff  in  this  case  being  South  Carolina.^ 
The  dispute  was  one  concerning  th.  proper  use  of  the 
Savannah   River,  which  coii.stitutes  the  greater  part  of 
the  boundary  between  the  two  States.     At  the  mouth 
of  the  river. 'opposite  t..  the  city  of  Savannah  in  ueorgia, 
the  stream  divides,  enclosing  a  long  strip  ..I  land  known 
a''.  Hutchinson's  Islan^l,     The  northern  or  South  Caro- 
linan  channCi  is  known  as  the  Hack  River,  and  the  south- 
ern channel,  which  Hows  past  the  city  of  Savannah,  is 
called  the  Front  River.     In   1787  an  agreement,  known 
as  the  '•  Treaty  of   IJeaufort."  between  South  Carolina 
and  Gec^rgia  declared  the  navigation  of  the  river  to  be 
"  equally  free  to  the  citi/.ens  c  f  both  States,  and  exempt 
from  all  duties,  tolls,  hinJnnice,  interruption,  or  molesta- 
lion  whatsoever  attenii)ted  to  I)e  enforced  by  one  State  on 
the  citizens  of  the  other."     This  agreement  defined  the 
channel  of   free  navigation  as  running  "  up  the  direct 
course  of  the  main  northern  channel,  along  the  northern 
side  of  Hutchinson's  Islaad,"  an.l  everything  south  of  the 
line  -^o  defined  was  declared  '■  to  be  tlie  exclusive  right  of 
the  State  of  Georgia." 

In  1874  and  1875  Congress  passed  act?  appropriating 
iJ4i  U,  S.,  665.  '93  U.  S,.  4. 


76 


AMl-.kK  AX   SriMUA!!'.  COURT 


-ub^taiitial  -unis  "  ii.]-  the  iiiipr.  iVLiiicnt  mi"  tin.-  harbur  at 
Sav;;nnah."  'I'lic  inipr' .vciiu-m  t< .(  k  thr  I'^rni  of  divcrt- 
'lU'j;  water  liv  a  liani  irmn  the  Hack  i\ivcr  iiUu  the  I'mnt 
Kivcr.  uuh  the  uliject  ;it  iiicrea-ni.^'-  the  depth  uf  the 
water  at  Savannah  by  fifteen  feet.  T'l  this  Sduth  Caro- 
lina (il)jecte(i,  takini,'  her  ^tand  ..n  the  ai^reeiiient  uf  1787. 
']"he  Secretary  (jf  H'ar  \\a^  juined  w  itli  Cieori^ia  a^  a  de- 
tenthmt  U>  the  actinti,  -nice  Ci.ns^re.ss  had  "iitrusted  tu 
him  tile  execntidii  of  the  works. 

The  Court  unanimou-Iy  held  that  the  i^^reenient  ut 
1787  was  no  jollier  relevant,  havinj,^  been  -ujier^eded  by 
the  Constitution  of  the  Cnited  State-,  to  which  Suuth 
Caiolina  and  (leori^ia  had  _t;ivjn  their  a>>ent  in  1788. 
L'nder  the  Con-tit  itioii  e\ery  State  deleL;ated  scmie  (jf  its 
rii^ht-  to  the  Cmted  State-,  and  the  ri,t;hts  so  delegated 
included  the  ri^lit  "  to  regulate  d  nir.ierce  with  foreign 
nation-,  and  .anioiig  the  several  State-."  'i'lie  power  to 
regnlate  cniunurce.  a.•^  the  Court  ob-erved.  had  been  held 
to  inclmle  the  control  o'f  navigable  rivers,  .-uid  a  river  may 
in  certain  ca-e>  iie  made  more  navigable  by  placing  ob- 
^tructions  therein,  lie  fore  the  adoption  of  the  Constitu- 
tion the  power  to  regulate  roiiunerce  kiv  with  th.e  States, 
and  the  work-  now  in  (jue-lioti  could  admittedly  have 
been  carried  >  nt  by  the  joint  authority  of  the  tW(.)  riparian 
States.  Snu  e  each  of  them  by  accepting  the  Constitution 
liad  -urremkred  it-  ngiit-  in  the  matter  to  the  i'"ederal 
Cjovernineni  it  iiece--ar;ly  followed  that  the  same  works 
could  now  ])e  carried  out  b)   l-'eijeral  autlioiit}-. 

L'outh  Carolina  also  relied  iip<  n  the  provi>ion  uf  the 
Constitution  i  .\rt.  l.X,  Sec.  1  )  which  direct-  that 


"  no  preference  .-hall  be  gi\en  by  aii\'  regulation  of 
commerce  or  revenue  to  the  ]>orts  of  one  .St.ite  over 
those  of  all'  ther :  iior  .^hali  ves-els  bound  to,  or  from, 
one  State  be  obliged  tc  enter,  clear,  or  pay  duties  in 

another." 


' 


CASl-S  OF   INJL-m    IIV   STATl'.  ACTION       11 

The  Court,  iKuvtviT,  Ik-M.  rdyn:-  np^n  an  earlier  decision 
of  its  own,'  that  thi^  c1:iu~l-  did  ii"t  pp.hihit 

■•  act.->  which  mav  .lircctly  lunetil  the  ports  of  on'' 
State,  and  (.nl\  inridentally  mjnri  ii>ly  affect  those 
of  annther,  >uch  as  the  itn]  iMveinent  of  rivers  and 
harhours,  tlie  encti-n  ot  h-hthouscs.  an<i  other 
facilities  of  eoinnuTce."  ■ 

In  other  wonN.  provided  that  the  Federal  power  is  exer- 
cised in  Koud  faith  -r  the  k'""1  "<  ^li^  cotmnunity  as  a 
whole,  the  C'ourt  will  not  ntterfere  merely  on  the  .ground 
that  certain  iiidividnal-  or  sccti  .ns  of  the  comnninity  may 
suffer  inci.lental  loss.  The  le-a'ity  of  the  improvements 
was  therefore  affirmed,  an.l  the  hill  of  South  Carolina 
dismissed. 

We  now  come  to  a  i^rouj)  of  three  closely  allied  cases. 
t,i  which  reference  has  already  heen  made  in  discuss.ms: 
the  qiiesti(;n  of  jurisdiction.  The  fundamental  issue  in 
each  one  is  the  rif^ht  of  a  State  to  protect  its  citizens,  as 
distinct  from  its  own  cori)orate  interests,  from  injury 
caused  hy  the  action  of  a  nei.n'hhourinj,^  State.  The  three 
decisions  are  not  easily  rcconcilahle,  and  the  conllict  he- 
twcen  the  lir-t  case  and  the  two  later  ones  really  marks 
a  change  of  mmd  m  the  judi^es.  who  were  ij^radually  led 
to  accept  a  hroader  viov  of  their  jurisdiction.  The  main 
facts  have  already  'neen  hrietly  Mated,  hut  in  this  chapter 
they  re(iu;re  a  sli,!.:htly  fuller  analysis. 

'i'he  tirst  of  the  ^'ronp  i-  Louisiana  v.  I'r.wis  {  1<)CX)),^ 
a  diMiute  which,  if  it  h.nl  arisen  hetween  independent 
States,  mi^iit  easily  have  led  to  war.  Texas  hy  statute 
had  i^Mven  to  her  own  civil  authorities  wide  powers  to 
make  and  enforce  very  drastic  iinanmtine  re.milations. 
The-e  power>  included  the  ri^^ht   to  d.etain  vessels,  per- 

^  I'l-niiixkiiHui    V     Ulu\lina    i'      Hch>u»i.    Kndiic    to.    (iS^fi),    iS 
ilowaril,   JJI 
■-'M   V.    S..    13. 
3  176  U.   S.,   I. 


MICROCOPY    RESOLUTION    lEST    CHART 

ANSI  and  ISO  TEST  CHART  No    . 


1.0 


^1    Ifil 

''  2I 


!l!3  6 


I.I 


1.8 


1.25 


'•^     il.6 


^      APPLIED  irVMRF     lr,t 


i 


78 


AMF.Rrr AX   SI  PRRMR  COl'RT 


sons,  and  prdjuTty  (.'niiiin;,'-  into  Texas  fmm  localities 
deemed  to  l)e  infected.  In  iSqg.  so  LoiiiMana  alle^a'd. 
the  Health  Ofticer  of  Texas  took  a<h .  ■  tat^c  of  the  occur- 
rence of  a  sinf:;le  case  of  yellow  fever  in  Xew  Orleans,  in 
a  district  several  miles  fn  ni  the  lonmiereial  <iuarter,  to 
lay  an  eniLar-o  r-u  all  inter-Stnte  c  ininierce  lietwcm  Xew 
Orleans  an<l  the  State  "i  Texas  and  this  eml)ar<;o  was 
enforced  by  armed  <,niards  posted  at  the  friintier. 
Louisiana  complained  that  the  real  motive  underlvinj;  the 
eniliar.jjo  was  the  de-ire.  not  to  protect  the  iml.lic  health, 
but  to  divert  c  innieree  frMpi  Xew  Orlean-  to  the  port  of 
Galveston  in  Texas.  In  i)roof  of  thi-  she  alle,i;ed  that 
commerce  entcrinf,^  (ialveston  direct  from  the  seriour.lv 
infected  jiort-.  of  Mexico  and  .ither  eoinitries  was  treated 
leniently  and  only  >ubjected  to  rea-mable  re-ulatior.-,. 
Finally  die  claimed  that  the  whole  acti<in  of  Texas  was 
really  an  attemiH  to  ret;ulate  inter-State  commerce,  which 
is  one  of  the  niaiter>  re-erved  under  the  (/on-titution  U) 
the  L'nited  State-. 

The  C'-urt.  liouever.  refu-e.l  to  entertain  the  suit. 
There  wa  C' -n-ideral>le  dit'ferenee  of  opiniMn  anioiij;  the 
judt^e-.  and  -  ir.e  uho  conmirred  m  the  res;ilt  did  -, ,  fnr 
diverj^rent  reasons.  The  deci-iMi,  wa-  exijlaitied  in  the 
later  case  of  Missmtri  v.  ////»<  is  on  the  ji;round  tli;it  "  the 
Court  did  not  decline  juri-dictiMn,  but  exercised  it  in 
holrlii,-  that  the  facts  alle,L;ed  in  the  bill  did  n.  a  justify 
the  Court  in  j^iantiufj  the  relief  prayed  for."  '  The  dis- 
tinction seems  a  little  tine-drawn  in  view  of  the  statemer.t 
of  Chief  ju-tue  huller  that  "  if  the  ca~e  stated  is  not  -ne 
presentin-  a  CMturover-y  between  these  States,  the  exer- 
cise of  original  jurisdiction  li\-  this  C.airt  .as  a^'aiiist  the 
State  of  Texas  cannot  be  maintained  "  ' 

It  i.s,  however,  needless  to  linger  over  tiiesc  verbal  re- 
finements.     The   substantial    reason    for   the   jud{;meiit 

'  180  U.  S..  .'40  '  1-6  U.  S.,  19. 


CASES  r»l'    IXjrRV   I'.V  STATE  ACTIOX       79 

seems  to  have  heeii  that  Lnuisiana  e.nild  not  maintain  a 
suit  to  iiroteet  the  l)e.'i)!e  -!  New  Orleans,  who  were  the 
parties  principally  atTeeted  hy  the  Texan  regulations. 
She  was  not  entitled  to  act  as  "  f^arcns  patriae,  trustee. 
c,nuinlian  nr  representative  of  all  her  citizens."'  The 
majoritv  oi  the  Court  al-.  to-.k  the  view  that  Texas  had 
not  so  far  adopted  nr  authnrized  the  action  of  her  health 
officer  as  to  make  it  her  own,  .Mtogether  the  -lecision 
seems  to  re^t  up-n  a  narmu  and  technical  rca^onniR 
which  contrast^  str.-n-ly  with  the -eneral  tendency  nf  the 
Court  tn  avoi.l  technicalities  and  to  ba~e  its  judLnnents 
upon  hr.iad  principles  of  ju>tice  aii<l  fair  dealing;. 

The  .lemurrer  nf  Texas  havin<;  keen  uiiheld.  the  :ase 
cMvle.l.  and  n-  inve^ti,!j;atinn  of  the  merit-^  wa>  pn^.ihle. 
The  mteriialinnal  lawver  will  -loubtless  rejjret  the  lost 
opportunity  nf  an  ar-ument  upon  a  matter  of  funda- 
mental impnrtanee  m  international  law.  namely,  the  ex- 
tent to  which  a  State  m.iv  manipulate  its  nwn  municipal 
laws  for  ilie  purpu^c  -'f  intlictin-  injury  uptni  a  nei-h- 
hnur.  .Accord.n-  t,)  the  Chief  Justice  such  matters  can- 
not he  judk-iallv  inve^ti-ate<l  at  all.  "  ruhhcpolicy."  he 
said,  •■  f-rliids  the  imputation  to  authorised  ofticial  action 
,,f  .anv  niher  tli.m  lei^uunate  nrntivo."  ■'  Such  an  a.s- 
Mimpt'imi  IS  nf  course  nomrmu^ly  at  variance  with  known 
lact.^,  and  it  is  tn  he  hnpcd  that  no  international  court 
will  thus  re-trict  it>  use  1  nine.-  with  nceule-s  tictDU-. 

In  the  next  year  the  Cnurt  was  faced  in  the  case  of 
Missouri  V.  Illinois  '  with  a  --imilar  problem,  although  no 
question  of  malice  was  here  invnlved.  These  two  States 
are  bounded  bv  the  Mississippi,  an  1  the  citv  of  St.  Lnuis 
stands  on  the  western  nr  Mis^nuri  bank  nf  the  river  forty- 
thre.-  miles  belnw  the  mouth  nf  the  lllinni>  River,  which 
Hows  entirely  through  the  territory  of  Ulinnis  The  dis- 
pute arose  out  of  a  drainage  scheme  whereliv  llbnms 
>  176  U.  S..  19.  "  '76  U.  S..  i8,  '  i8"  ^     ^  ■  --^ 


8o  AM!-:RIC.\X  SlTKi:.M!-:  COL'RT 

proposed  to  divert  tlu-  ;-L\vago  o'  Chicagn  frum  I.akc 
Michiijaii  into  the  Illiiiuis  River,  from  which  it  would  of 
cour-e  flow  into  the  Mississippi  al)ove  St.  Louis.  The 
scwap^e  was  to  he  hvnw^ht  from  Chicat^^o  to  tlie  Hhnni^ 
Ri\-er  l)v  a  >]ieciall\  ci.n-tructed  canal.  .Mis.>onri  lmh- 
tcndcd  that  thi.^  ,L;rcat  iiias>  of  crude  sewage  would  so 
pullute  the  water.-,  "i  the  Missis--ipi)i  as  tn  render  them 
unlit  for  urdin.ary  um-.  and  would  seri(.u.>Iy  injure  the 
health  of  her  mhaliitants. 

.'\s  we  have  already  seen,  a  nLijonty  of  the  judi^e^  held 
in  this  ca-e  that  the  controversy  wa>  one  within  the  juris- 
diction of  the  Court,  though  Chief  justice  I''uller  and  two 
of  his  hrethrcn  took  the  >an!e  line  a>  they  h.ad  taken  ui 
the  Te.xai  case.  h"or  the  majority  .Mr.  Justice  .'^hiras 
observed : 

"  It  niu>t  >urel\  he  conceded  th.at.  if  the  health 
and  comfort  of  the  inhahitruUs  of  a  St.ate  ,iie  threat- 
ened, the  State  is  the  proper  party  to  represent  and 
defend  them.  If  .Missouri  were  an  independent  and 
sovereign  State  all  mu^t  admit  that  she  could  seek 
a  rcnu'dx  liy  negoti.ation.  ,and.  that  failing.  li\'  force. 
Diplomatic  powers  and  the  riL;ht  to  niak''  u.ir  h.-iviiii; 
lieen  surrendered  to  ilie  general  government,  it  was 
to  he  e.x])ected  that  upon  the  latter  wuld  he  devolved 
the  dutv  of  providing  a  remecly,  and  th-it  rem'd\. 
we  think.  i>-  fomid  in  the  C' >n,titution,d  |)rovisions  v,e 
arc  considering."  ' 

The  jurisdiction  h.avini'  hren  thus  afilrmeil  .i  Lncr 
pause  ensued,  and  the  case  did  not  come  on  for  argument 
on  the  merits  until  uy^>.-  Tlie  question  now  Incanv 
mainly  one  of  fart,  and  a  mass  of  ■scientific  .and  other  evi- 
dence was  laid  l)efore  the  Court  The  hurdcn  of  proof 
lav  upon  Missouri,  who  had  to  est.ihlidi  that  ilu'  acts  (>{ 

M8o  U,  S.  J4I.  --■<«>    C    ^.   4<)<' 


1 


C.\SI-".S  Ol-    IXjlKN-   ]]\   STAll-:   ACTIOX       Si 

lllinoi.-  were  -urt'icieiu  In  creaie  a  "  iiui^aiice  "  in  the  Ie,s;al 
sense  nl  the  unril.  'I'hi-  hurden  -he  failed  V<  (h-charj;e. 
A  >lif;lu  increase  of  typhi. itl  fever  at  St.  L-ui^  jiroved 
n'ltllint,^  lor  there  \va<  Ud  c  irre-pnndiiv^^  iiicrea.ie  along 
the  hanks  of  the  llhnni^  River  it-^elf.  'i'his  river  appeared 
t'l  liave  heen  aetiiahx  iiiipr'^ved  !>}■  the  change,  'i'lie  nitro- 
(hictiiiii  of  a  larp;  hody  nf  fre^h  watv  ivm  Lake  Alichi- 
;,'an  tran>f(irnied  it  fmni  a  -luj4,i;i>h  ->treain  intn  a  (juick 
and  clear  une,  t"  whieli  eihhle  fish  liad  n^ 'w  returncfk 
The  \vater>  ui  the  Mi^-'iiiri  Kiver  appeared  t<i  l>e  in  fact 
mure  polluted  than  tho-e  if  the  Ilhrnii-.  uliich  falN  int'i 
the  Mississippi  shi;iit]\-  higher  uj)  than  the  nv  lutli  of  the 
Missouri.  Any  incmivenience  that  St.  jjiui-  --uffered 
tni,L;ht,  tlierefnre.  he  ea-il\  attrihutahle  tn  tl;e  .Mi>N,.uri 
River,  tlowint;  through  Mi>siiuri  territory. 

Thi--  realK'  di-pn-ed  nf  the  ea■^e,  fur  it  cnuld  iMt  l)e 
ar^L^ued  that  the  a'-'ti^n  nf  lllinni-  \va-  unlawful  except 
upon  the  !;rianid  nf  nui-anee.  Since  the  ri\er>  were 
navif;ai)le  Conijress  niiL,dit  have  undertaken  tn  rej^ulate 
theiii.  hut.  a-  if  had  nnt  dune  -n.  Illinni^  \\a.■^  tree  to  act 
in  an_\  way  that  did  imt  vmlate  the  ri.i;lu-  of  lier  nei,L;h- 
liiiur  .  L'pnii  tile  a]iplicatiiiii  nf  Ulinni-,  .\li->(,uri  was 
ordered  tn  pa\-  the  cnst>  nf  the  -nit.' 

In  the  ca.se  of  Kansas  v.  Culoradn  the  fptcstinn  ot  juris- 
dietinii  was  decided  in  \')02.'  hut  the  t'inal  deci-j.  n  upon 
the  merit-  \\a-  imt  le.uhed  uiilil  11/07.  i  he  ipie-tinii 
was  one  o*'  the   le-pective  ri^ht^  nf   the  parties  in  the 


waters  nf  tlie   .Xikaiisas   River. 


ruer  n-e 


in  the 


Rocky  Mnuntains  and  drains  a  hasin  if  ahnut  J_\ofK) 
square  miles  in  the  State  of  Colorado  liefore  it  enters 
Kansas.  .Miuh  i>\  this  .area  hein^  niniuitaiiinns  the  river 
receives  a  l.irj;e  additional  volume  oi  water  in  the  spring. 
In  Kansas  tlic  stream  llows  through  alluvial  lands,  and 
tlrains  an  area  of  less  than  fnur  thousand  stpiare  miles. 


'  jcK'   V    S.,  fwo. 
!'■  4.U5 


^  i8s  U.  S..   1.-5. 
F 


jiyi  U.  S.,  40. 


82  AMF.ru  AX  SUPREME  COURT 

Owing  to  the  porous  nature  ..f  the  -^nil  most  (^t  the  rani- 

fall  in  this  area  (hd  not  reach  the  river.' 

Kan->a>  c  niplained  that  ^he  wa.-  heing  deprived  of  the 
natural  flow  of  the  water  owing  to  certain  extensive  ir- 
rigation works  that  were  l)eing  earned  out  under  the 
authority  nt  the  Colorado  legislature,  with  the  re-ult  tliat 
a  large  portion  of  Kan<a>  territory  wa>  in  danger  of  he- 
coming  a  desert.  Colorado,  after  vainly  disputing  the 
jurisdiction  of  the  Court,  maintained  that  she  was  entitled 
to  deal  exactly  as  >he  plea-ed  with  all  the  waters  in  her 
,nvn  territorv,  even  if  the  result  sh(  add  he  to  cut  oil  the 
water  from  Kansi-  altogether.  This  was  an  appeal  t'> 
sovereign  rights.  Kansas,  on  the  other  hand,  took  her 
stand  on  the  I'.nglish  common  law  rule  th:it  all  riparian 
owners  have  .-(pial  rights  in  the  unuUerruined  tlou  of  the 
stream,  in  odier  words,  she  asked  the  Court  to  regard 
the  question  as  ouc  of  strictly  legal  rights  hetween  indi- 
viduals. I'urthermore  she  relied  upon  the  fact  that  she 
entered  the  Union  in  iS(.i,  whereas  Colorado  was  not 
admitted  until  1S7O:  from  which  it  would  folkrw.  that  if 
Kansas  possessed  any  rights  in  the  water  before  icSjd, 
they  c'luld  not  he  afterwards  diminished  by  the  admission 
to  the  I'nion  of  .mother  ."^t.ate. 

When  the  case  came  <in  for  final  hearing  in  -.907  the 
I'nited  States  el.iimed  to  intervene  on  the  ground  of  a 
paramount  interest  in  the  controversy,  it  was  argued 
that  hv  virtue  of  superior  sovrrrigntv  the  Federal  dov- 
ernment  was  entitled  to  deal  with  all  flowing  waters  for 
the  general  henetit  of  tlie  whole  community,  irrespective 
..f  the  local  and  conflicting  interests  of  particular  States. 
Such  wide  powers  fouivl  no  p!,ice  in  the  actual  words  ,.f 
the  Constiluti'  n.  hut  coun-el  .irgueil  that  thev  were  to  he 

«  I  hone  this  hrief  statement  sufficiently  summarises  the  essential 
firts  I7  witnesses  were  examine.l.  :.n.l  th.  evi,  enee  amomitcrl  to 
rS,  typcwntten  pa^es.  wuh  .-•-.  e.xhjhits  (-06  U.  b,,  .05-6).  See 
also  the  conclusions  of  the  Court,  j..  HO.  tost. 


CASKS  Ol"   FXJIKN     l'.^'   STAT'',  ACTIOX        83 

implied  from  the  juivver  ^^iven  ti.  (nngre-'s  to  "  res:;ulate 
commerce."  The  Court,  hnwcver.  refused  \>>  huld  thai- 
powers  so  extensive  CDuid  lie  cmiferred  hy  mere  implica- 
tion or  to  read  into  the  Constitution  a  general  autlKjrity 
to  Congress  to  undertake  the  reclamation  of  arid  lands. 
Congress  could  rcgulatr  navigahle  river>,  hut  the 
Arkansas  \va-  not  navigable  in  either  of  tlu'  t\VM  States. 
and  its  navigahilit\-  Inwer  down  was  admittedly  unaf- 
fected ])y  the  irrigation  work>  in  Colorado.  The  niter- 
vention  of  the  United  states  was  therefore  dismissed 
withun  prejudice  to  any  claim  that  might  arise  concern- 
ing the  navigable  portion  ui  the  river. 

The  adjustment  of  the  conflicting  rights  of  the  two 
States  was  a  more  ditticult  matter.  The  first  problem  was 
to  find  a  rule  of  l;iw  liv  wiiich  to  decide  the  question. 
The  law  of  Kansas  was  the  I'lnglish  common  law  rule  of 
the  er|ual  rights  of  riparian  owners,  with  certain  statutory 
mnditications.  Colorado,  on  the  otlier  hand,  had  declared 
in  her  Constitution  that  the  owner.-hip  oi  all  unapjjro- 
priated  water^  withni  the  ."^tate  was  vested  in  the  public, 
which  was  expre.^^lv  entitled  to  divert  them  for  beneficial 
n>e-.  Xenher  State  could  enforce  it--  rule  upon  the  other, 
and  tiiere  wa--  no  iH'der.d  statute  or  other  .superior  law 
governing  both  parties. 

This  difficulty,  h' iwever,  did  not  deter  the  Court.  If 
no  law  existed,  the  (  '  lurt  w  a-  (|uite  prepared  to  make  one. 
The  ( 'on-titution  L;ave  it  juri-diction  in  ca^es  invidving 
([Uestions  of  "  law  >  r  e(iuit\-."  and  "  law  "  in  1 7S7  meant 
the  English  common  law,  .at  an\  rate  in  general  outline.' 
This  the  Court  w,-i>  prenaied  t;-  vu]iplement.  if  reciuired, 
by  the  rules  of  intern.'itional  law.  and  cited  a  well-known 
dictum  of  its  own  delivered  in  one  of  the  prize  cases  aris- 
ing out  of  the  Si)ani~h  War  of  i8g8: 


»io6  U.  S..  947. 


84         ami-:kic.\x  SL"rRi-:.\ii-:  court 

"  International  law  is  part  of  our  law,  and  must 
be  ascertained  and  administered  by  the  courts  of  jus- 
tice lit  appropriate  jurisdiction,  as  often  as  questions 
of  rij;ht  deiK?nding  (Hi  it  arc  dulv  presented  for  their 
determination."  ' 

And  I'iiief  Ju-tice   buUcr  bad  bini:-elf   remarked   in  the 
first  stage  of  the  present  ca.-^e  : 

"Sitting,  as  it  were.  a>  an  inti  rratinnal.  a-,  well 
a-  a  domestic  tribunal,  we  apply  b'ederal  law.  ."^tate 
law.  and  international  law.  a->  the  exigencies  of  the 
])articular  ease  may  demand."  ' 

And  tnially 

'•  Thrnu,c:h  these  successive  disputes  and  decisions 
this  Court  i-<  practically  building  up  what  mav  not 
improiierly  be  called  iiUer-State  common  law."'' 

The  cardinal  rule  governing  every  question  was  declared 
to  be  that  of  the  equality  of  States. 

"  I'.arh  State  stand>  on  the  same  level  with  all  the 
re^t.  It  can  im])ose  its  own  li  gi^Iation  on  no  one  ol 
the  other-,  and  is  b  .utnl  to  yield  its  own  views  to 
none.  .  .  .  Surelv  here  is  a  dispute  -if  ;i  justiciable 
nature  which  must'and  ■  n-ht  to  be  tried  an.l  deter- 
mined^ If  the  two  State >  were  absohitelv  independ- 
ent nations  it  would  be  .settled  by  treatv  or  bv  f'^rce. 
Xeither  of  these  two  ways  being  practicable  it  must 
l)e  settled  by  decision  of  this  Court."'* 

.Acting  up'  II  these  main  principles  the  fourt  went  on 
to  analyse  the  rights  of  the  parties  to  the  case.  The 
claim  of  Kansas  to  treat  the  matter  as  ,  lue  merely  of  ordi- 
nary   ripari.in    rights    was    rejected,    as    was    the    right 

'  I  hi-  I'uiiucli   llabana  (1900)  :  172  U.  S..  700. 
^  i8s  U.  S..  146. 
•'  206  U.  S..  08. 
4  206  U.  S.,  ')7-«. 


CASKS  OF  IXJl'RV  P.V  STATE  ACTIOX       85 

claimed  lur  CoUjrado  to  deal  as  she  pleased  with  the 
wIkjIc  biKly  of  water.  ,\'or  was  Colorado  to  be  allowed 
to  appropriate  all  the  water  and  to  recompense  Kansas 
bv  something,''  else  of  equal  value;  for  tb.e  Cnurt  to  allow 
this  would  be  for  it  to  make  a  bargain  between  the 
parties.  On  the  other  hand,  the  (."nurt  unuld  consider 
the  general  benefit  to  llie  land  in  both  States. 


"For  instance,  if  there  be  many  thiiU-^ands  of 
acre-  in  Colorado  destitute  of  vegetation,  which  by 
the  taking  of  water  from  the  .Arkansas  Riv  r  and  in 
no  other  way  can  be  made  valuable  a-^  arable  lands 
producing  an  abundance  of  vegetable  growth,  and 
this  transf(jrmation  of  desert  land  has  the  effect, 
through  percolation  of  water  in  the  soil,  or  in  any 
other  wav  of  giving  to  Kansa■^  territory,  although 
not  in  the  Arkansas  valley,  a  benefit  from  water  as 
great  as  that  which  would  inure  by  keejiing  the  ilow 
of  the  -Arkansas  in  its  channel  undiminished,  then  we 
may  right f nil v  regard  the  usefulness  to  Colorado  as 
justifving  its  action,  although  the  locality  of  the 
benefit  which  the  \]o\\  of  the  Arkau'^as  through 
Kansas  [cau->es]  has  territorially  changed.    .    .    . 

'■  Will  not  the  productiveness  ,)f  Kansas  as  a 
whole,  its  capacity  to  support  an  increasing  popu- 
lation, be  increased  by  the  use  of  the  water  in  Colo- 
radcj  for  irrigation?  May  we  not  consider  some  ap- 
propriation bv  Colorado  of  the  waters  of  the 
Arkansas  to  the  irrigation  and  reclamation  of  its 
arid  lands  as  a  reasonable  exercise  of  its  sovereignty 
and  as  not  unreasonably  trespassing  upon  any  rights 
of  Kansas!^  "'  ' 

Mr.  lustice  I'.rewer  w.'nt  on  t.i  point  out  that  the  Kansas 
law  itscl!  recogniseil  the  right  of  appropriating  water  f. -r 
irrigation,  subject  to  an  ecpiitable  division  .among  the 
riparian  proprietors.  He  further  obs'^rved  that  a  strict 
ai)plication  of  the  common  law  rule  might  result  in  Okla- 

».>o6  U.  S.,  \M-i. 


86  AMERICAN  SL-1'Kr.MF,  LOrRT 

homa  making:  tlu-  -anic  claim  ayain-t  Kansas  which 
Kansas  was  n.'W  niakiii-  a-aiii^t  Colorad'.  with  ihc  prac- 
ticai  r^'MiIt  that  the  rucr  caikl  n^i  I'c  u>ol  i-.r  irri.qatimi 
purpi  '-c^  at  alt. 

A.-,  tile  tiiial  (lcci>iiin  in  tlie  case  is  somewhat  coinpli- 
:ated    it  is  hot  stated  in  the  lan^^ua^^e  n\  the  L'onit : 


"We  are  dI"  the  opinion  that  the  contention  of 
Colorado  of  two  streams  '  cannot  Ik.'  sustainetl ;  that 
the  appnipi  iation  mi'  the  uater>  of  the  Arkansas  hy 
Colorado   for  the  puri)M-e  of  irri-atiMn,  has  dimm- 
ished  the  tlow  of  water  into  the  State  of   Kansas; 
that  the  result  of  that  appropriation  has  been  the 
reclaination  of  large  areas  in  Colorado,  transiorm- 
int,^  thousands  of  acre^^  into  fertile  tlelds  and  render- 
ing- po»il)le  their  occupation  and  cultivation  when 
otherwise  thev  would  liave  continued  barren  and  un- 
occupied: that  while  the  intluence  of  such  (liminiition 
has  lieen   of   iierceptible  injury   to  jiortiou-  of   the 
Arkansas  valley  in   Kansas,  particularly  those  por- 
tions closest  to  the  (^dorado  line,  yet  to  the  gi'i-'^it 
body  of  the  valley  it  ha^  worked  little,  if  any.  detri- 
ment, and  rei^ardiuL^  the  interests  of  both  States  and 
the  ri;,dit  -f  each  to  receive  benefit  thn.nt:;!!  the  ir- 
rigation and  in  any  other  manner  from  the  waters 
of  this  stream,  we  are  not  satisfied  that  Kansas  has 
made  out  a  case  entitliiii:,^  it  to  a  decree.    .\t  the  same 
time  it  i-  obvious  that  if  the  depletion  of  the  waters 
of  the  river  bv  Colorado  continues  to  increase,  there 
will  come  a  time  when  Kansas  may  jusily  say  that 
there  is  no  lontrer  an  eciuit.able  division  of  benefits 
and  mav  ri-htly  call  for  relief  against  the  action  of 
Color.ad".    its  corporations  and   citizens,    m   appro- 
priating the  waters  of  the  .\rkan-^as  for  irrigation 

purposes.  . 

"  The  decree  which,  therefore,  will  be  entered  will 
be  one  dismissing  the  petition  of  the  intervener, 
without  prejudice  to  the  rights  of  the  United  States 

iThi.    refers   to    an   arEv.nieM    vut    forward   b/    Col..nflo   based 
on  certain  technical  scientitic  evidence,     bee  206  L.  b.,  £3-4,  115. 


CASES  OF  INJURY  V.Y  STATE  ACTION'       87 

t'l  take  such  nctinn  as  it  ^liall  deem  necessai^  to 
preserve  or  iniprcjve  the  iiaviL;ability  of  tlie  Arkansas 
i\iver.  The  decree  will  al.-o  di.^^nii^s  the  hill  ot  the 
State  of  Kansas  as  against  all  the  defendants,  with- 
(jut  prejudice  to  the  right  ai  the  plaintiff  to  institute 
new  proceedings  whenever  it  shall  appear  that 
through  a  material  increase  in  the  depletion  of  the 
waters  of  the  Arkansas  hy  Colorailo,  its  corp(jrations 
or  citizens,  the  sul>stantial  interests  of  Kansas  are 
heing  injured  to  the  extent  of  destroying  the  e(iui- 
table  apportionment  of  henelits  Iietween  the  two 
States  resulting  from  the  tlow  of  the  river.  Each 
party  will  pay  its  own  costs."  ' 

A  few  remarks  suggest  themselves  upon  the  five  cases 
noted  in  this  chaiiter,  'i'wo  out  of  the  live  disputes — 
Chcroki-r  Xatioii  v.  Gcoygia  and  Lmtisiaihi  v.  Texas — 
arose  from  real  political  antagonism.  In  each  of  these 
two  cases  the  defendant  State  was  accused  of  deliberately 
violating  the  plaintiff's  rights  with  the  object  of  causing 
a  definite  injury.  The  three  remaining  cases  were  all  con- 
troversies arising  from  ciMitlicting  interests  in  the  use  of 
iiitcr-State  rivers.  In  these,  although  the  States  C(.m- 
ceriied  did  not  agree  as  to  their  respective  rights,  there 
was  no  suggestion  of  political  antagonism  or  of  deliber- 
ately injurious  conduct.  The  ca:^es  in  which  the  Chero- 
kees  and  Louisiana  were  the  plaintiffs  were  of  the  kind 
which  between  independent  nations  might  easily  have  led 
to  war.  The  three  river  cases,  on  the  other  hand,  all  be- 
longed to  the  class  f)f  dispute  which  nations  habitually 
submit  t(>  ar])itration.  Xone  of  them  could  jjossibly  have 
provoked  an  armed  conflict  unless  tlie  jiarties  were  in- 
tent on  war  for  other  reasons. 

That  being  so,  it  is  somewhat  remarkable  that  in  each 
of  the  two  really  serious  cases  a  majority  of  the  Court 
dismissed  the  bill  on  rather  narrowly  technical  grounds, 

iao6  U    S.,  117. 


88  AMKUl^AX   Sn-Kl-Mi:  i  ol-KT 

and  refused  t.  .nvc.t>,atc  tlu-  nuTU-.  m  .he  piamtiff's 
comphunl  There  is  .,f  course  .u,  need  t„  suok..!  that 
n    ;-lcl,hera,ely  Mnvked  a  .leUcate  and  awt,rceahle 

U^^lhu  the  ran-,  has  always  ;.enrduaant.  even  n 
-'  ,     .  .   •  ,li,.  sli'dite-t  uHi-<    i't  censure 

upon  the  nnichict  of  a  btati.  an  '  '-       1  •     i  ,  ,     ,n 

l^tancc  nKU   h.ve  unc.n.cu,u.ly  h,ased  the  3ud,  s^^^^ 

,..^„„,  ,„   the  technical  av.unients  uh,ch  enabled  then. 
:av..lp-..n,.nu.n,.a,ud.n,en,    ,hatw,.ldhave^n^^ 
tlvedth     severe^tn^.-ala.n^ureu,,..n.hedehnquent 
^      ;!;hreenverca.^d,.n..call..rn,u-Ucn.nK.,^ 

,       •       /         ,■     rrnra'ui    wa-^    ea-dv    decidcil    un    tUe 
Sunt  I    idrKiiii!    \.    (."<",'/'''    ^^''  •  ,  r 

tld  that  tlK.r,n.tituti..  had  ve.edn.L..n,resssu^ 

fie,entauth,,ntyt.  execute  the  in.pn.cn,ent^,nM.^^ 

l/,-s-s-.,<n'  V   ////"."•.  was  als„  a  uurly  Mmple  ca^..  shkc  the 
iX  "  d..ued  tl.at  no  nuisance  luul  uMact  heen  caused 

:  c.so,nn,Uuned.t.     K.n...  v.  C./,.Wo  ts  tunre 

t  restin,  hec:utse  d  ilh.trate^  the  d,hvnlty  wuh  w  neh 
""tL^tinnal  court  nu^trnqnentK  he,  a^^^^ 
::"    accepted  rule  of  law  apphcahle  to  the  particubr 

^ute.  tL  law.  o,  the  two  State,  upon  te^h3e^ 
Jttcr  of  the  ..ntrover^v  were  n.  d^np  .-'ndat  a  d 
Ire  wa.  no  rule  of  .t,per,or  authority  lnnd-n,t,pon  bo  h 

:^i,.      ,t,.hvnon,ean..at.,actory,,.rht,,antsto 

:  V   their   di^pute    settled    accordu.,   to    a    rule    n.ant. 
ture.nw  the  Court  to  nu.et  the  particular  emer,euc>. 

Th        tt.al  deci.on  reached  u a.  in  the  nature  o,  a  con> 

^'  ,,,.,Uentheca.enMntu-nationalarb.t,at.ons. 


prouuse. 


rn\pTi-R  VT 


Till-    l'.Xl'(Ma  i:.Ml..\  r  ()!■   JL'nCMF.XTS 

"John-  Marshall  ha-^  pronounced  his  ju<l.c;mcnt :  lot 
him  enforce  it  it  lie  can!  "     With  this  scorniul  challen-e 
Presi.lent  Andrew  Jack>on  enlpha^i>ed  the  chief  dilticulty 
that  niu^t  confront  any  court  winch  i-~nes  commands  to 
Ini-ant.  more   powerful   tUan    itself.      The  word,   uere 
sp;ien  in  iS:;_>.  and  referred  to  nne  episode  in  the  loii^^ 
but  unsuccessful  resistance  ..f  the  Cherokee   Indians  to 
Georgian  oppre-i(.n.'     Marshall,  a  7.ealou>  Federalist.  Id 
the  Supreme  Court  in  its  keen  Solicitude  for  the  hon.mr 
,,f    the    United    States,    which    was   deeply    i)ledi,^ed   by 
solemn  treaties  with  the  Indian  t,il)es.     Jackson,  a  roush 
soldier  from  the   fr..ntier  of  Tennessee,  cared  little  for 
liKlian    ri-hts  and    little    for   the   judicial    >ettlement   of 

di-pute>.' 

F.,r  more  than  tliirtv  years  Marshall's  powerful  mmd 

had  -uided  the  Supreme  <~  ourt  in  a  policy  of  emphasisiui,^ 
an<l  extendin,^  the  p.-wers  of  the  Federal  C.overnment  at 
the  expense  of  the  ri.-;hts  claimed  for  the  separate  States 
At  the  time  of  the  conflict  with  Ce'^rgia  he  was  an  old 
man,  and  he  died  in  1S33.  The  inaui^mration  of  Presi- 
dent lack-on  in  iSj()  iiad  marked  the  end  of  the  old 
l'\'deralist  party.  Jackson  was  carried  into  office  on  the 
top  of  a  j^reat  wave  of  popular  feelinl,^  which  demanded  a 
vif^orous  reassertiou  of  State  rii;]its.     The  whole  of  the 

'  ]l'orrester  v.  Ccorpm.  '>   I\tir«,  515. 

-  Wlun  the  Indians  appealed  to  J.ackson  to  enforce  tlif  treaties 
he  re|)i;e(l  "  tliat  the  President  of  the  United  States  has  no  power 
to    piuteet   them   .isainst    the   law.   of   Georgia"    ( ?    Peters,  q). 


90 


AMF.RICAX   SUrRI'MK  (OURT 


S.iutli  and  West,  UiK<-'tli<-r  with  the  j^rcat  States  of  New 
York  and  Pennsylvania,  weie  >uh(lly  lichind  hini.  His 
opponent.  President  Adam-,  carried  nnly  Xew  Englaad 
and  the  three  ^nalk-t  o''  tlie  Middle  States.  The  election 
was  regard.*!  a>  a  great  trinniph  for  democracy,  and 
among  ;ne  deleateil  enemie-.  of  deniMcracy  popular  feel- 
ing included  Marshall  and  the  Sujireine  fourt.  Georgna 
succe>sfully  ina-'ilained  her  reM>tar.ce  to  it;>  decrees.' 
The  Cherokees  were  ultimate'.}  driven  beyond  the  Missis- 
sippi, and  the  result  of  the  whole  O'litlict  was  ;i  victory 
fnr  the  p-in<-iple  of  State  sovereignty  over  the  principle 
of  the  judicial  settlement  <<\  inter-State  di^iiutes. 

Under  the  jiatrMnage  >>i  Jack.-on  and  lii>  successors 
the  Supreme  L'ourt  was  gra  .t.ally  filled  with  judges  who 
made  no  further  attempt  to  extend  the  powers  of  the 
Federal  riovcrnment  at  the  ex])en-e  nt  the  States. 

Another  incident  of  Jack     n's  presidency  should  here 
be  noticed,  although  it  did  n^  it  involve  the  question  of 
actual  resistance  to  the  Court.      The  grant  of  a  charter 
in   I7t)r  and  again  in    i8i<i  to  the  Rank  of  the  United. 
States    had    amused    hitier    popular    ho,-tility,    and    the 
legality  of  the  action  had  been  challenged  in  the  Suiireme 
(^ourt,  whicli  in  iSi<)  had  ilecided  in  favour  of  the  l'.ank.- 
The  charter  wa-  due  to  expire  in    iS,:;'>.      In    iS_:;j  Con- 
gress pa---ed  a  bill   for  it-  renewal,  which  wa-  vetoed  by 
the  Pre-ident,      in  his  me>-,ige  to  Cougre-s  Jackson  as- 
serted his  right  and  duty  under  the  (    aistitution  to  exer- 
cise his  own   judgment  ou  the  (|ue>ti<in  of  the  Cou-titu- 
tior.alitv  oi  the  P.aiik.  irre-jiective  of  the  jud-ment  ■)!  the 
Sunreme    Court.       In    taking    this    action    he    was    un- 
(loul)iedly  sujiported  by  the  public  opinion  of  the  d.iy,  and 
his  Attorney-Cieiieral,  I-Joger  Taney,  advised  lii'u  that  he 

»  In  ono  instance  she  acfuany  executcl  a  Cherokee  in  'lffia"« 
of  a  writ  of  error  addressed  to  the  GenrRian  courts  liy  tile 
Supreme   Court   of   the   I'nitrd    States    (.■;    Peters,   li). 

^McCulloch  V.  Maryland.    »  Wluaton,  Ji6. 


i 


Till':  r.NFuiui'iMi'.x  ■■  i)i''  jr!)(;.Mi'.xTS    ot 

was  riglit.  t'i)"n  the  death  'i  Mai>!iall  in  iS,:;5  i'aiiey 
was  ai>i>iniilc(l  Chief  Ju:^tice  .a'  th.e  Sr.ir,\ine  Luurt.  In 
l!iat  cajiacity  in  1S57  lie  delivereil  t!;e  decision  ut  the 
inajiiritv  in  the  Dred  Seutt  ea.-^e.' 

The  Dreil  Scott  jn*l,i;nient,  viewed  in  the  li.L;ht  nf  liis- 
tory,  sii  far  fnmi  l>ein--  a  mean-  "i  avertin-  war,  nui>i  he 
reckoned  a-  .  aie  ><(  the  causes  directly  cuntrihutini;'  h>  the 
i.uthreak  of  the  Civil  War.  To  under>tand  it-  sii;nih- 
cance  we  nnist  .l;o  hack  to  iSjo  and  recall  the  "  Missouri 
t'onipronii-e  "  of  that  year.  That  a.^reenient  had  pro- 
vided that  Mi.--tairi  -hould  he  admitted  to  the  L'nion  as 
a  slave  State,  hut  th.at  for  the  future  there  should  he  no 
more  -laverv  west  oi  the  Mississippi  i^.rtli  .f  the  latitude 
of  !,(>"  30'.  In  the  Dred  Scott  ca-e  it  was  deci<led  that  a 
-lave  taken  hy  hi-  ma-ter  to  a  free  Terrilors  remained  a 
-lave  and  the  property  of  his  ma-ter.  The  I '■  urt  iurther 
ileelared  that  the  Mi--ouri  ('oinpronii'e  \\a-  iinalid  and 
that  -lavery  m  the  Territories  could  u..{  he  ahoh>hed 
either  hy  foii^re—  or  1)\  the  Territorial  le^i-latures. 

The  deci-ion  once  ,L;iven  duld  iimI  he  overruled  excejit 

hy    cotistitutioii.d    amendment.       Such    an     amendment 

would  recjuire   the  concurrence   of  three-i'  urth-  oi    the 

State  lei;i-lature-,  which  \\a-  clearl\   nnp..--ihle.     (  )n  the 

mh  Decemher.   iSo,  >.  i.incoln  ua-  formall;.  elected   I'rcsi- 

dent   .a'   the   I'tiiled   State-,      lie  had   alreadv  committed 

liini  elf  to  the  (loetrme  that  "  thi-  '.jovemment  cannot  eii- 

chne  h.dl   -lave  ami  half  free."      Hi-  ekn-tiou  iiotilied  the 

determination  oi  the  North  and  Wi-I  that  -ia\er\   -hould 

11-  t  he  n.lerated  (iUt-ide  the  exi-tin-  S.  uthern  States,  and 

the  Si'Uth  al-o  rii;htl\    interpreted  it  a-  ineanmi;  that  \<  r 

the  future  the  L'.'verument  of  the  Repnl.Iic  liad  dehnUely 

pa^'-ed   into   the  hands  of  their  .  i])]).  iieiil  ■ .       I  he  aii-wer 

to  the  challenge  was  not  slow  in  'omiiv^.     (in  the  joth 

Ueccmlier  the  roiivention  of  S' uth.  ( 'arohna  repudiated 

*  Scoll  V.  SttiitljiirJ.   i>)  1  l.)\'..ircl,  .}'<.!. 


r,2  AMF.RTCAX  SLTKl-.Ml'    cOUKT 

,heC.n^tuuti„n.:Mhc  rnUcl  Slat.>  and  -krbml  tlua 
Sc.uth  e-arolnui  roiniuMl  her  sovcrci-n  place  anions  the 
nation.  The  remanvler  of  the  Cotton  State,  sonn  ranged 
Ihem.elvc.  hv  her  M.le.     ( )n  the   ..■thAprU,  >S(...S.ulh 

Snipe,  at  I'-rt  Sninter 


Camhna  lired  up'^i  tlie  Mar.  anc 
and  the  war  hei^an 
It    is 


cce.-ary  t-  ^lanee  1-riellv  at  the.e  pMluieal 
matters  it  we  uouM  appreciate  crrectU  the  rclat.un  o. 
the  suprenie  Court  t.^  the  .i^^rasct  contl>ct  ui  American 
historv.  The  Dred  Scott  jud.^nient  vva.  a  deci-n  nt 
favour  of  the  Snuth,  Of  the  nme  jud^e.  then  cmpo^n- 
the  Court  the  Cluef  Ju.tice  and  f ,  .ur  ,.ther.  uere  Demo- 

Ot  the  l-ur  lr..ni  the  tree 
ere  Whites.     The 


cral:- 


frMin  the  .lave  Mate- 
State  twM  were  Uem.'crats  and  two  wer 
strict  le.-al  requnements  of  the  .li^pute  called  mr  nnthiUK^ 
more  than  a  ruling  u,..n  rl,c  per.nnal  .tatus  ot  Dred 
Scott  an.l  Mr.  lu.tice  XeLnn,  a  Democrat  trom  New 
York'cnntmedhim.elf  t.  th,M-mt.  I'.ut  the  ma..nty 
of  the  Court  conld  n.  a  rci.t  the  temptaii.  >„  to  pmn^'unce 
an  opinion  up^n  the  -reat  o.n.titutinnal  que.t,.^n,_  1  aney 
thon^'ht  that  the  CMirt  had  now  the  chance  ,d  Intal  v 
vervcnntn.ver-va.  theSouthde.ired  it  to 

rc..ure  was  l>roui;ht  nii^n 

The  Court 

as   diviiUd    .-non-   iKirty    line,    the    two 

Whi-   ju.l-e.  .lissentin-    don,   the   -  ;.inion   o,    the  ma- 

"     '    nieiit   wa.   the  exact   op- 


.ettlinir  tile  .ia 

lie  settled,  and  .onie  out.ide  p 

the  live  Southern  jn.lse-  to  take  thi.  course 

unf.  ■■tunately    w 


jonty. 
posite 


rhe   re.nlt   o!    the   in.  ,. 

what  Tanev  had  expected  and  hoped.     In.tea.l 
„f  settlitis  the  Mue.ti:.n  of  .laverv  in  the  Tcrrir  ,ne-  once 

.„„,  ,-,,r  all  ,t  onlv  .owed  to  pile  frcT,  luel  upon  die 
.,l,.,li,inni.t  agitation  an.l  to  let  loo.e  a  torrent  -d  n.disna- 
tion  upon  the  Court  il.elf.  Manv  violent  and  itnjust  thn.RS 
wo,-e   .aul   aCut    the   jnd    ,        v.ho   had    und..nhtedl^    de- 

•     1  .        f     Mr      Iiiulii-o     Clirti*!     Imaiiu     tilie 


•rill'.  I'Xi-ouc  I'.Mi.xr  '  >i'  ji'i»..Mi-.Ni"s   93 

cidcil  in  accnnl.i'.u-f  uiili  tluir  Miiccrc  cMiviclKiii-.  It  was 
generallv  I)c!icvrd  ;ini..n.-  Kcinil'licai!-.  ami  flu'  charge 
ua.>  even  CMuntciiaiiccil  1iy  Lincoln,  tliat  the  (k>ci>i(in  hail 
l.Lcn  arranged  hctwccn  I'rcsidcut  I'.uchanan  and  the  I'hiet 
I  notice.  The  accusation  was  (|uite  unjust  to  hnlh  men, 
iiut  in  the  heated  ainiM-pluTe  of  the  time  it  was  inevitable 
that  it  should  be  u'  id.e  and  believed.  The  only  conclu- 
sion which  ue  can  draw  tn-day  in-m  the  whole  episode  is 
that  in  1S5;  the  Mavery  dispute  IkkI  already  reached  a 
>tai;e  at  which  it  could  11-  lon-er  be  solved  by  an  aj-iieal 
to  anv  court  ot'  law. 

A  di-cu-ion  of  the  Urcd  .^cotl  ca^e  may  at  tir>t  sight 
appear  to  have   little   bearing   upon   tin-    ^ubject   of    the 
present  chapter.  Mine  the  judgment  wa-  actually  obeyed 
without  further  question  by  tlie  parties  c-ncerned,     1  he 
parties  were  two  jirivate  individuals  and  the  only  (iuc>tio'n 
presented  formally  for  <letermination  wa-  whether  Scott 
could  maintain  an  action  for  a.-ault  and  battery  agam>t 
hi>  ma-ter,  Sandf-rd.      I'ut   the  real  importance  of  the 
judgment  lay  in  tlie  -olnnii  decision  of  the  judges  that 
C"i^ngrc.-s   had   no   power   to   exclude    slavery    from   the 
Territories  of  the  I'mted   State-,  and  that  the   famous 
Missouri  Compronnsf  of  iSjo,  which  purported  to  do  so, 
ua-  invalid.     I  >on  this  great  i-sue  the  ju  'gment  of  the 
Court  was  not  acce])ted  or  obeyeil.  for  it  wa-  overthrown 
bv  the  vict.Tv  of  the  N'orth  in  the  Civil  War.     After  the 
u,ir,  whil.'  the  South  lav  under  the  heel  of  the  North,  the 
ju.lgnunt   uas  legally  got   rnl  of  by  the  Thirteenth  and 
b'ourteenth    .\mendments.    which    ,ibolished    slaver\    and 
made  the  negroes  citizens  of  the  Ciiiteil  States. 

At  no  tune  ua--  the  Supreme  Court  asked  to  decide 
upon  the  (|uesti.in  whetlier  a  State  could  lawfully  secede 
fr.im  the  Union.  It  i-  obvious  that  an\  State  which  was 
prepared  to  pecc(K'  mu-t  liave  assumed  lh.it  us  action  was 
justifiable;  and  ii    -   .  the  mere   f.ut  of  secession  would 


94         AMi-kir.w  srrivi-.Mi-:  covrt 

make  it  an  uulcpciulcnt   Stat.'  n,.  Ini-cr  Mil.jcxt  in  the 
juri'-dietion  of  the  Supreme  (  "urt. 

•rnniiu^-  n..\v  to  the  nther  ea^e>  noted  ni  previous 
ehapters  we  shall  find  that  the  <iue-tion  of  the  entoree- 
mcnt  of  judgnient>  i^  one  that  has  l.ecn  c.^ntnuially  pre- 
sent to  the  min.ls  of  ihe  jnd-cs.  It  was  ar.^uied  at  m me 
length  in  the  ea>e  of  Chisholw  v.  (^roniia  ui  i;.)^;  where 
counsel  for  the  plaintiff,  after  tentatively  sn-^cstnig  that 
the  decree  nni;ht  be  enfnreed  by  the  seinire  ot  specdie 
property,  was  driven  at  la-t  to  envelop  the  whnlc  matter 
in  a  cloud  ni  rhetoric. 

"  Still,  we  mav  l>e  pre-^e.l  with  the  hnal  (lue^tir^n  : 
'What  if  the  State  is  resolved  to  oppose  the  e.xecn- 
tion-'     This  would  be  an  awful  ([ue-tion  indeed. 
He  to  whose  lot  it  should  fall  to  solve  it  w..uld  be 
impellent  to  invoke  the  go.l  of  wisdom  to  illuniniate 
his  decision.     I  will  not  believe  that  he  w.nilo  recall 
the  tremendous  e.xampk-   ,.f    ven-eance.    wluch   in 
past  (lavs  have  been  inflicted  by  thn^e  who  claim. 
at,Min>t 'those  who  vi<4ate.  authontv.     I  will  not  1k- 
licve  that  in  the  wide  aii.l  ^\nnmy  theatre,  nver  whuh 
his  eve  should  mil.  he  mii^ht  percnaiice  catcli  a  d!>- 
tant  'irhmpse  of  the   IVderal  arm  uphited..     -.enes 
like  this  aVe  too  full  n.h..rnrn..tt,,,,uate,iwt. 

rack  the  ima^inatim,.  .  .  .  Ihit  that  any  State 
should  refuse  to  conform  to  a  s.^lemn  determination 
of  Ihe  Supreme  <-nnrt  of  , he  l^ium  ,s  nupos.ble. 
unless  >he  -^hall  abandon  her  l^^ve  of  peace,  tidebty 
to  compact,  and  character."  " 

The  Court  .lid  not  determine  the  (pie^tion.  Mr.  Ju-tice 
Hlair  exprosiuLT  the  hope  that  coercion  w.nild  Ik-  mmeces- 
sarv  What  actuallv  happened  wa^  thai  ( .eov^oa  pa^^on- 
atelv  refused  to  comply  with  the  iu.l^nnent.  an<l  wa-.  sup- 
ported in  her  refusal  by  public  opinion  throui.d,out  the 
^tate<      Tin-  particular  controversy  was  settle.l  bv   tlie 


1  J  Dallas,  41') 


-  i  Oallas.  +27-S- 


1 


I 

I 

I 


THF.  RXFOKCr.Mr.XT  Oi-    imC.Ml'XTS        95 

[•■.Icvcnth  AnundnuMil,'  l)Ut  the  tact  romainol  that  the  tir>t 
.Iccrec  ctucrcd  in  the  Sui-n-tin-  Court  against  a  State  of 
tin-    I'ninti    had   been   contemptuously   and    successfully 

''^'''^■''-  /   o  QA  ■• 

In  the  case  of  Rh^Jr  Ishim!  v.  Massachusetts  ( iS.^f<)  " 

counsel  f.-r  Massachusetts  arL;uni-  ajjainst  the  ju^i^dIC- 

ti.m  of  the  fnnrt.  laid  ^tres>  upon  the  fact  that  no  means 

existed  tor  enf-rcm-  an>   jud.unient  that  im-ht  l>c  deliv- 


L-red. 


o  this  toiinsL 


Uh'Kle   Islai'd   rei)lied: 


"  Xo  process  xvnnld  necessarily  follow  a  Imal 
decree  in  this  cause.  We  ask  n^ .  damaijes  of  Massa- 
chusetts; no  .lelivery  of  possessiun:  no  process  :o 
compel  her  tn  do  or  to  undo  anythm-  A  1  we  ask 
i.  a  decree,  ascertaining  aiid^ settling  the  boundary 
line  lietueeii  the  two  States. 

The  Court  did  not  feel  bound  to  decide  the  question,  ami 
,.  ,be  jud.nieiu  ultnnatelv  went  in  favour  of  the  de- 
fendant State,  uhich  uas  in  posses^i.ni.  no  problem  as  to 
execution  was  presented.  . 

The  case  of  Kcnlurkx  v.  IK;wisau.  C:>rrnwr  of  Ohw 
hSoo,  '  was  UMt  m  f..rm  a  suit  a;;ainst  a  State,  but  the 

Court  ri.dulv  t-n-k  tlie  view  that  the  State  of  Ohio  was 
the  real' defendant       Ke-uucky  -lemanded  that  the  (.ov- 
ernor  should  be  .  rdered  to  ^ive  u,.  a  fu-it.ve  trr.m  n,s- 
tice.  a  free  neum  wh, ,  was  accused  of  helpint^  a  slav.  to 
escape.     The  Constitu'u  ni  (  .\rt.  IV,  Sec.  2)  anu  .|  hed- 
eral   statute  of    ,70,^  cxpre.slv  direct   the  surren.ler  by 
St.ate  officials  of  all  fu-.ntives  'rom  justice  escaping  tmm 
,>ther  States      The  constitutional  prMvi-ion  covers  cases 
„f  "  treasM,,.  fel^nv.  or  ntlu  r  crime  "  and  the  .\ct  of  1793 
uses  the  same  words.     (  m  the  other  hand.  Ohio  was  a 
State  where  anti-slavery  feeling  was  stronfr.  and  T^enm- 

^  I J  Peters,  705- 


'  St'o  i>.  0,  (iii'i*. 
••!  12  Peters.  657. 


IciHlfl 


\.  (V' 


'/• 


AMl'-.KK  \X   SL'l'Kl'.Ml.  (  nUK  r 


.son  had  just  been  elected  as  (•.<.vern..r  In  the  Ke|)ul.hcan 
I)arty  after  a  senvati..nal  eampai-n.  The  whole  atmos- 
phere was  chav-eil  with  forebodings  of  war. 

(.  Iiiei  Iu>tice  ranev.delivermg  the  opinion  of  the  Cnirt. 
laid  down  ni  the  tir-t  place  that  the  (lovernor  was  obliK^ed 
under  the  Constitution  and  >tatute  to  deliver  u].  all  lugi- 
tives  frr.ni  justice,  even  th-u-h  ihe  act^  with  uhich  they 
ucre  char-ed  nn^ht  n-t  be  ntTences  according  t..  the  Ohio 
law.     The  (iuveninr^  .luty,  he  .siid,  was  purely  minis- 
terial and  did  iK.t  pernnt  him  to  lurm  any  ..pinmn  as  to 
the   merits  of    the  particular   ca>e.       The    L'nion   ,il    the 
States  was  •'  a  c  ini)act  binding  them  to  give  ai<l  and  as- 
sistance to  each  nther  in  executing  their  laws,  and   to 
support  each  other  m  pve^erving  law  and  -v.ler  withm  its 
confines,  whenever  such  aid  wa^  needed  and  reciuired. 
Without  such  mutud  Mii'i)nrt.  ^ai.l  the  Chief  jubilee,  the 

Union  must  fail. 

Having  thus  emphasized  the  (iovernor's  dutv  under  the 
Constitution,  Tanev  concluded  his  judgment  by  nl)su-v- 
ing  that  nn  means  existed  lor  compelling  it^  cnlorcemeiit. 

"The  act  does  n<.t  pn.vide  anv  mean-  to  compel 
the  execution  of  this  dutv.  nor  inthct  any  punishment 
for  neglect  -ir  refu-al  on  the  part  ol  the  l-.xecmive 
nf  the  State:  nor  i-  there  any  clau-e  or  provision  m 
the  Constitution  uhich  arms  the  Covernment  ot  the 
United  States  with  this  power.  Indee-l,  such  a 
power  would  place  everv  State  un.ler  the  coutrol  and 
|,„„i„i„„  „f  the  (ieneral  Covernment.  even  m  the 
administration  of  its  internal  concerns  and  reser%ed 

'''^- But"  if  the  (iosernor  of  Ohio  refuses  to  dis- 
charge this  dutv.  theie  is  no  pouer  .lelcgated  to  the 
General  Covernment.  either  through  the  Judicial  De- 
partment or  anv  other  .lepartment.  to  use  coercive 
lians  to  eumpellnm.  And  upon  this  gn-unjUhe 
motion  for  the  .nandamus  must  be  overruled. 

.:.,  Howard.  107.  100-10. 
1  j(  Howard,  i<».  "' 


Til]",  i..\T'()Rn';Mi:\  r  oi'  jlix.mi-x  rs 


97 


I'ancy  wa^  an  cariK'St  Iiclicvcr  in  >lavcry  and  ;it  tlio  ~ame 
time  an  carnol  In'lii'vcr  in  State  rii^hts,  and  lie  rcrtanily 
deserves  full  credit  ior  a  judgment  in  which  respect  fur 
these  two  principles  was  so  in<;eniiinsly  combined.  It 
need  hardly  he  added  that  the  fugitive  was  mil  in  fact 
surrendered. 

To  understand  this  cmitri  vcrsy  prnperly  it  should  be 
remembered  that  in  1850  Congress,  then  under  Snuthcrn 
nitluence.  had  jiasscd  a  -trintjent  "  I'^u.^^itive  Slave  Act," 
to  be  enfiiveed  in  all  States  by  b'ederal  utiieials.  The  mere 
atfidavit  cif  the  ma-ter  was  made  ci  nclu-ive  evidence  of 
the  ownership  of  a  slave.  The  re-~ult  v. as  thai  in  the 
North  fuj;itives  were  often  rescued  from  I'ederal  custody 
by  mobs,  with  the  o])en  apjirobation  of  intluential  and 
respectable  men.  b'urtbermore  the  Icj^islatures  of  the 
Northern  States,  including;  Ohio,  passed  acts  the  whole 
object  of  which  was  to  make  the  enforcement  of  the 
Federal  law  as  dirt'icnlt  as  po^'ble.'  !n  these  circum- 
stances it  was  not  likely  that,  where  anti--!avery  feeling 
was  aroused,  tiie  State  authorities  would  be  more  likely 
to  obey  the  judicial  than  the  le.gislative  organ  of  the 
Federal  Cioveniment. 

Manv  vears  parsed,  before  the  i|ue^tion  of  enforcing  a 
decree  against  a  Stale  was  again  argued  in  the  Supreme 
Court.  Most  <if  the  cases  heard  were  boundary  di.-putes 
which  arousecl  no  strong  political  feeling;  in  SMine  in- 
stances the  ([ue^tion  was  submitted  to  the  I'oiirt  by 
mutual  consent,  and  in  every  case  the  line  a--  ilelined  by 
the  Court  was  accejitcd  liy  both  States.  There  have  been 
three  cases,  namel\.  [,i'i(isitiiui  v.  I  rxas,  Missciiri  v. 
niiuins.  and  KanMis  \.  CoIi'fiKli).'  in  which  the  plauHilf 

'  The  .'Supreme  Court   of  \Visconsin   went  .so   far  as  to  rplpasp 

nil    olTi'iulir    by    habras    ciirf^us    fri)tn    tlio  custody    of   tlie    I'nitod 

States    .Marshal,    and    rifiiscd    to    comply  with    a    writ    of    i-rror 

■'irccti'd   to    it    from    tlu'    Suprcini'    Court  of    the    United    States. 

S'.T  .llili-iiiiiii  V.  liiioth  I  i.'^.iS).  Ji    Howard.  ,^n6, 

-  See  Cliapter  V,  ante, 
y.  4.1-15  G 


98 


\M1-.KKAX   SrrUl-Mi-    COURT 

.sought  an  niiiinrti..n  rc^trainin.ir  the  .IclViidaiil  State 
from  o.mnuttin.u  the  acts  cnnii-laiiiol  ..t'.  l-ut  Miice  the  (le- 
cW\nn  ..1  the  Cnurt  in  each  case  was  in  favour  (it  the 
defendant,  the  .ineMmn  -.1  enforcing"  an  nijunction  did 
not  arise.  hi  i'mlr,!  Slatrs  v.  Mlchu.m  (np;,)  ' 
the  parties  came  to  an  a-reenient  alter  the  mam 
qne^tinn    had    been    decided    m    favonr    of    the    L  mted 

States. 

The  case  of  .S-<u(///  Hakoia  v.  Xorth  Carolina  m  TOO4- 
revivc,  the  proMeni  <.f  enf.Tcemem  hut  as  a  matter  of 
form  rather  than  .  .1  ^nlistance.    The  decision,  as  we  have 
already  ^cen.  was  to  the  etl'ect  that  South  Dakota  was 
entitled  io  recover  from  North  Carolina  the  sums  .lue 
upon  certain  State  l-nnds  which  had  been  a^M-ned  by  pri- 
vate hnl.lcr.s  iM  the  i)laintit-f  State.    The  relief  claimecHiy 
the  i>ill  followed  the  precedent  of  private  suits,  demanding 
the  u-ual  remedy  bv  foreclosure  and  sale  in  dcfauH  of 
pavment.     This   remedy  was  possible   in   the  particular 
case,  since  the  bon.ls  had  iieen  issued  in  order  to  effect 
a  mortgage  of  certain  railway  stock  held  by  the  State  and 
the  stock  was  expressly  vleclared  to  be  collateral  security 

for  the  bonds. 

The  Court  in  its  judgment  ranged  at  large  over  the 
questinn  of  execution,  citing  the  dicta  of  various  judges 
to  the  effect  that  it  cnild  neither  order  the  property  of  a 
State  to  be  -cized  nor  a  tax  to  be  levied.  Rut  in  this 
particular  case,  since  the  debt  was  secured  by  the  uK-rt- 
gagc  of  specific  proiierty.  it  was  hehl  that  the  ordinary 
remedy  bv  foreclosure  o-nhl  be  applied.  A  'lecrce  was 
accordingly  eiitere.l  directing  that  unless  the  -urn  due  was 
paid  bv  a 'certain  date  the  marshal  of  the  Court  Miould 
sell  the  stock  by  public  auction  in  Washington  to  satisfy 
the  plaintiffs  claim.' 

-•  V)2  U.  S..  286. 
U)2  U.   S..  J2I-2. 


(IkiIiIii    I\'.  anti 


Tiui  i:xF(jiai:MrxT  of  iudcmkxts 


9'J 


I'hc  decision  m'  tli"  Court  was  tliat  ni  a  l)arc  inajunty, 
Mr.  Justice  White  (n;)\v  Chn;i  Justice)  dhscrving  on  be- 
lialf  of  the  minority  : 

"  I  take  It  to  be  the  elementary  rule  of  public  law 
that,  uhil-t  tiic  contracts  of  a  sovereign  may  en- 
gender natural  or  moral  obligations,  and  are  in  one 
sense  property,  they  are  yet  obligations  re-ting  on 
the  promise  of  the  sovereign  and  possessing  no  other 
sanction  than  the  good  faith  and  honour  of  the 
sovereign  it-elf."  ' 

The  minoritv  view  is  of  more  than  merely  academic  in- 
terest, since  the-  Supreme  Court  of  the  United  States, 
unlike  the  British  House  of  Lords,  holds  itself  free  at  any 
time  to  reverse  its  own  previr)us  decisions.  1  here  is 
therefe>rc  alwavs  a  pos-^iljility  that  the  o])inion  of  a 
minoritv  tnav  in  the  course  of  time  become  the  basis  for 
a  judgment  of  the  Court. 

It  is  in  our  own  day  that  the  question  of  enforcement 
has  taken  its  most  serious  form.  The  ■-uccessful  resist- 
ance of  ^'eurgia  to  the  Court  in  early  da\s  occurred  only 
in  cases  where  private  individuals  were  the  plaintilfs. 
The  seriousness  of  the  situation  recently  created  by  the 
case  oi  I'irtjiiua  v.  West  I'lrginia  lies  in  the  fact  that  it 
was  in  effect  the  repudiation  by  a  State  of  its  obligation 
under  the  Constitution  to  accept  the  Supreme  Court  as 
the  final  arbiter  in  inter-State  di-pules. 

We  have  already  seen"'  that  on  the  I4tli  June.  1915, 
after  prolonged  ''ligation,  in  which  every  possible  con- 
sideration was  "^hown  by  the  Court  to  the  defendant  State, 
X'irginia  obtained  a  decree  for  the  payment  of  the  sum  of 
over  twelve  million  dollars,  with  interest  at  five  per  cent. 
to  r;in  until  i>:i\iiieiit.  The  case  had  been  exhaustively 
ci>n>idered  bv  the  C  ourt,  ;mil  every  po-sihU-  defence  to 


loj  I'.  S..  ,ui--- 


Anti-.  p.  71. 


i 
i 


i 


loo  AMl.KKAN   Sfl'Ul'.M  l'.  rDL'KT 

the  claim  had  W.u  carefully  cxamnH-.l  u  nh  a  lull  ^ensc 
of  uhat  wa>  <lucMn  tlK  d.^MUty  ..MlK.  lartK-^  an.      h. 

importance  of  ihc  o.nrovcr.y.     I'l-n  the  mcrUy.,  the 
Je  nothing  turthcr  rcnuincl  tn  he  .nd.  andtlK.  acns,nn 

was  rendered  hv  an  unaninions  L-uri. 

Virginia  then'  waited  for  a  year,  hnt  noilnng  hariH;ned 
Then  she  moved  m  the  Snpremc  C.nrt'  lov  a  utU  o 
..ecntion.  In  reply  to  this  nv..on  We^,  Vn-,nna  plcadj. 
t,,,t  .he  could  n.t  ohey  the  jndgment  except  through  tl 
action  of  her  legi-latnre,  which  uonld  no,  meet  un  - 
1-untarv  U).;.  She  alleged  further  that  die  had  no 
;;;;;:u^nH:ctt,,  execution,  and  concluded  hydenymg 

that  the  Supreme  Court  had  any  authorUy  whatever  to 
enforce  a  money  judgment.  Up, -n  the^e  two  la^t  pom  s 
the  Court  foun.l  it  tmneces.ary  to  expre^^  an  opm.on  at 
the  time,  hut  thev  accepted  the  view  tliat  W  e^t  \  n-gnna 
.hould  no,  he  forced  to  act  until  her  legislature  had  ,net^ 
The  motion  for  a  writ  of  execution  was  therefore  retused 
..  ,,ithout  preiudice  t.  the  renewal  „f  the  .ame  a.ter  the 
next  se^.ion  of  the  legislature  ol  the  State  o,  We-t  \  ir- 
ginia  has  met  and  had  a  reasonahle  opportunity  to  pro- 
vide fr,r  the  pavment  of  the  judgment.    " 

The  legislature  .>f  West  X'irginia  acconlmgly  met,  held 
it.  ordinarv  session,  and  .eli^.umed  wuhom  making  any 
attempt  to  ;atisfy  the  judgmem.     In  H,iS  the  question  o 

execution    therefore    came   hefore    the    supreme    Cotirt 
again/ and  gave  Cdnef  Justice  White  .he  opp..'tunitv  ,.n- 

a  long  and  learned  survey  . ."  .he  wh„le  prohlein,  m  which 
he  examined  the  history  of  the  colonial  jurisdiction  o,  the 
r.riti.h  I'rivv  Council  and  also  the  voluminous  reconls 
of  the  discussions  preceding  the  adaption  ot  the  hedera 
Onrstitution.  hi  those  dehates.  as  was  natural,  duergen 
vie.Nshadnamdexpressi.,,,.  andtheChiel  Justice  cUed 
several  opinion,  which  s,rongly  favoured  the  grant  nt 
.241  U.S.,  53..  ^^.4.  r.  S,s,..  -40C.S,.505. 


Till'.  i':.\F()i^ci-..Mi:.\T  oi-'  jLi)(..Mi;.\  r.-     k-h 

cuercive  i)iiwfr->  Id  tlif  l-'cMkral  <  'mvcMimK'nt.  As  a  matter 
(if  lii>t.:'-v  it  i.-,  hdwcvcr,  (|uilc  clear  tliat  nin^i  of  the 
States  wduld  never  have  entered  the  L'ninn  if  they  had 
iinaj^ined  that  therehy  they  were  ^uhnlittin,<,'  themselves 
t(j  the  p()S>,il)ilit_\  uf  l-Vdc-ral  eicrcidn.  Of  the  euntempn- 
rarv  papers  liv  far  the  nm-t  inipmtant  is  77;r  lu-drralist. 
the  series  of  collected  es-ays  in  which  Alexander  llannl- 
tiju,  the  leader  of  the  1-Vderali>t  party,  together  with 
.Madis(jn  and  Jay,  urijed  the  people  of  Xe.v  'S'ork  State 
to  L;ive  their  adherence  to  tlie  l"on-titntion.  In  Xo.  (Si  of 
this  work  Hamilton  allndes  to  the  alarm  cansed  by  the 
sn^t^'estion  that  the  establishment  of  I'ederal  Courts 
mii;ht  render  States  liable  to  be  sued  fur  their  debts. 
Upon  thi>  he  remarks: 


"  It  is  inherent  in  the  nature  ui  s(n-ereignty  not  to 
be  amenable  to  the  -uit  of  an  individual  withou'  its 
C(jnsent.  .  .  .  Unless  therefore  there  is  a  sur- 
render of  thi^  imnnniity  in  the  plan  of  the  conven- 
tion, •  will  remain  with  the  States,  and  the  danger 
intimated  must  be  merely  ideal.  .  .  .  There  is  no 
colour  tt)  pretend  that  the  State  ji^overnments  would, 
by  the  adoption  of  that  plan,  be  divested  of  the 
privilejije  of  payinsj;  their  own  debt-,  in  their  •  n  way, 
free  from  every  constraint  but  that  which  (lows  from 
the  oblii;:itions  of  .good  faith.  The  ci)ntracts  be- 
tween :i  nation  and  individuals  are  only  binding  on 
the  conscience  of  the  sovereign  and  have  no  preten- 
sions to  a  cominil>;ve  force.  They  confer  no  right 
of  action  indei)endent  of  the  sovereign  will.  _To 
what  purpose  would  it  be  to  authorise  .suits  against 
States  for  the  debts  tliey  owe?  How  could  recov- 
eries be  enforced?  It  is  evident  it  could  not  be  done 
without  waging  war  again-t  tiie  contracting  State: 
and  to  ascribe  to  the  b'ederal  courts  by  mere  imiili- 
cation.  ;md  in  destruction  of  a  pre-exi-ting  right  of 
the  St;ite  gnvernmenl'^,  a  jjowcr  which  would  involve 
such  a  consequence,  w.-uld  be  altogether  forced  and 
unwarrantable." 


I02  AMERUAX   SLTKl.M!'.  I'ol-RT 

llannlinu  ,^  >i..akin-  ..nly  .^t  suit^  by  in.lu-UiaU,  Imt  ;t 
is  clear  Imiii  the  la-^t  w.-rds  ot  the  pa-.-a-e  (luoted  ihat 
he  did   lu.t   l,eheve  in   the   p..>sil)iHty   of   any   power   of 
enforcing;  the  jud-mcnt-  of  the  Supreme  C>'Urt  against 
a  recalcitrant  State.     When  we  remember  that  Hamilton 
was  the  chief   repre-entative  of   the  extreme    I'e(lerali>t 
view   it  is  ,,bviou^  that  the  general  npim-n  ..l   his  day 
wnuld  never  have  tolerated   the  nution  ui  the   f.^rcible 
execution  of  the  Supreme  C'uurt's  decrees  against  a  State. 
l-:specially  i^  it  certain  that  the  people  would  never  have 
agreed  x'}  the  u-e  .,f  force  lor  the  collectiun  of  debts  due 
from  one  State  t:>  another. 

The  ideas  uf  1788  need  not  be  accepted  in  1918,  unless 
they  have  been  embodied  m  a  document  of  binding  force, 
and  upon  tin-  great  ([uestion  of  enforcing  judgments  the 
Constitution  was  discreetly  silent.    The  Chief  Justice  ac- 
cordinglv  proceeded  to  examine  the  claims  of  the  parties 
beiore  the  Court.     N'irginia  contended  that  the  judgiiient 
of  the  Sui)eine  Court  bound  the  defendant  State  "in  a 
governmental    capacity." "    and    rendered    State    property 
liable  to  execution.     She  claimed  further  that  the  Court 
could  order  the  West  X'irginia  legislature  by  mandamus  to 
levy  a  tax  to  pay  the  debt,  a  practice  frequently  adopted 
when   the   .lefeiulant    was   a   city   corporation   or   other 
municipal  authority. 

All  these  contentions  weie  expre-sly  denied  by  West 
X'irginia,  which  claimed  in  general  terms  "that  the  de- 
fendant as  a  State  may  not,  a>  to  its  powers  of  govern- 
ment reserve.l  to  it  by  the  Constitution,  be  controlled  or 
limited  by  (jh-ccss  for  the  purpose  of  enforcing  the  pay- 
ment of  the  judgment."  ' 

'idle  judges,  overruling  the  argument  of  West  Virginia 
on  the  general  ([uestion,  held  that  the  Curt  had  authority 
over  the  State  government,  and  that  the  right  to  pro- 

1J46  U.  S.,  59-4-5- 


THK   F-.XFnRrFMF.XT  Ol-   j(  I  )(iMi;.\  !  S       103 

nounce  a  judgment  nnplicd  ilic  ri^;lii  to  ds,.  1!^.  apjirn- 
priate  means  fur  it.-^  cnfi  ircciiicnt.  Ximicr.  iii-  decisions 
f^nvcn  in  private  suits  were  cited  to  lend  authority  to  t'  •■ 
sninewhat  obvious  proposition.  There  is  no  difficulty  in 
statinj^  as  an  abstract  and  -riieral  principle  tiuil  the  judg- 
ments ou^dit  to  be  enforced.  The  real  prublein  i>  to  de- 
cide uijon  the  ways  and  means,  ur,  as  the  Court  said, 
'■  Wliat  are  the  appropriate  remedies  fur  such  enforce- 
ment ?  "  ' 

Here  the  Cliief  Ju>tice  was  ^m  more  difficult  ^^r  luui. 
He  began  by  saying  that  it  was  within  the  power  of  Con- 
gress to  enforce  the  judgment  by  special  legislation,  and 
that  this  [xiwer  was  derived  from  the  necessity  of  pro- 
curing the  assent  of  Congress  to  the  contract  of  r86[ 
creating  the  debt.-  This,  we  may  remark,  would  be  in 
effect  shifting  the  responsibility  on  to  other  shoulders. 
The  Court  could  not  issue  orders  to  Congress,  nor  was 
Congress  under  any  legal  obligation  to  help  the  Court  out 
of  its  dif^culties.  All  that  the  Chief  Justice  could  mean 
was  that,  if  Congress  chose  to  pass  a  law  for  the  coercion 
of  West  \'irginia,  the  Supreme  Court  would  be  prepared 
til  hnld  it  valid.  On  general  principles  it  would  seem  mi- 
desirable  that  such  an  opinion  should  be  fnrmally  pub- 
lished before  any  statute  had  l)een  actuallv  passed. 

In  the  second  place  the  Chief  Justice  went  on  to  con- 
sider "the  ajipropriate  remedies  under  existing  legisla- 
tion." \'irginia  was  asking  for  a  iiiiiiulannis  ilirectlv 
ordering  the  West  \'irginian  legislature  to  levy  a  tax  U> 
iTieet  the  judgment.  This  of  course  was  the  crux  of  the 
wli.ile  matter  and  the  ("uurt  decided  to  jiostjione  it-  si.lu- 
tion  of  the  difficulty.  The  Chief  Justice  treated  the  (|ues- 
tion  as  being  "  whether  there  is  power  to  direct  the  levy 
of  a  tax  adequate  to  pay  the  judgment  and  provitle  for  its 
enforcement  irrespective  of  State  agencies."  ^    The  Court 

'J46  U.  S.,  600.  "-246  U.  S.,  (101-3.  '246  U.  S.,  604. 


I04 


A.Mi'Ricw  sriM^i-.Mi-.  coL-in- 


(lifccicd  tlic  caM-  In  111.'  adjourned  fi.r  furtlur  arj^umcnt 
upon  this  point,  togcthrr  uith  the  question  i.t  the  pussi- 
l)iHty  ut  cxecntinn  upon  State  pn>pert\.  In  deciding,'- 
upon  tliis  further  pnstponenieni  tlie  (."uurt  expressed  a 
ui-li  to  <4ive  We>t  \  ir,L;inia  another  opi),,rtunitv  of  com- 
plying; witli  ilie  jud-inent  an.l  at  tlie  snne  time  to  <(ive 
l"on,i;res,s  an  ojjportunity  of  takin,i;  such  action  as  it  inii,du 
think  fit. 

Smce   tlie   rendering;  of   the    ind;,r,nent    ui^er  counsels 
have  prevailed  with  the  Wc>t  \iri,rjnian  authorities,  and 
an  act  has  now  l>een  passi,.,!  levying;-  a  tax  for  tlie  i^ratlual 
extinction  of  the  deht,  nearly  four  years  after  the  pru- 
tiouncenient  o.f  the  decree    -nd  fifty-six  years  after  the 
debt  was  contracted.     Had  it  neen  decided  to  prolont;  the 
resistance,  it  is  not  easy  to  see  what  the  next  step  would 
have  been.      b:ven  if  the  Court  in   s,.-),   a  case  should 
decide  to  order  the  levy  of  a  tax  or  the  se(|uestration  of 
certain  propert\  there  is  no  security  that  the  controversy 
would  be  thereby  ended.     The  defendant  State  mit;ht  be 
no  more  willing'-  to  comply  with  such  orders  than  with  the 
original  decree.     Or  again  if  Congress  sh.nild  consent  to 
pass  coercive  legislation  we  cannot  be  sure  that  it  woul.l 
be  obeyed.     Federal  legislation  has  before  now  been  suc- 
cessfully resisted  I)y  recalcitrant  States,  and  what  has  hap- 
pened before  may  liappen  again.     Should  the  worst  come 
1.1  the  worst,  no  means  of  enforcing  sucii  a  decree  wdl 
rem.iin  save  the  employment  of  Federal  troops.     Fortu- 
nately for  the  peace  and   fraternity  of  the  L'nion,  West 
Virginia  lias  decided  not  to  force  the  matter  to  such  n 
grave  crisis.     Fven  an  .mtsider  may  be  t)ermitted  to  ob- 
serve that  the  repudiation  of  a  debt  solemnly  contracted 
is  not  the  i)est  .ground  up.tn  which  to  fight  for  an  assertion 
of  "  sovereign  "  rights,  and  if  this  grave  issue  must  ont 
day  be  decided,  it  is  lK>tter  that  the  resistbig  State  should 
lie  able  to  found  her  claim  upon  some  higher  ground  ot 


Till-.  i:.\F()KCi:Mi:.\r  of  ji-dcmexts     105 

justice  an.l  i>nlicy.  Bui  the  "  nioic  perfect  Uni(3n " 
throws  >trnn<,'er  a^  the  years  go  on,  ami  as  the  echoes  of 
r.lci  c.nuruver>ies  .lie  a\va>  ue  may  hope  .hat  no  State 
will  seek  to  reawaken  them  Ijy  a  tresh  challenge  to  the 
authority  of  an  united  nation. 


ciiArn-.R  \  11 


GI'.XI-R  \I.  ("OXCM'SinX: 


Ir  remain-  tn  a-k  wlu-tlkr  \\c  lan  draw  rri>ni  the-c 
ca-es  an\-  ])racin'al  lt.'--'<ii>  fi 'r  mir  .iwn  ila\.  \\  Ik'ii  we 
are  seekinj;  t^  -el  uji  a  (  .iiirl  mi"  ilie  XaiMii-  a-  a  imaii- 
f)f  aviiidiiis;  war.  what  c:iii  we  learn  t"n  ni  tlie  1  '-Mry  ut 
the  Supreme  I '^  nrt  >'t"  the  L'tiited  State-' 

It  i-  |}(:--iMe  ti.  err  in  two  \va_\ -.  inidi  th  jxtieine 
partisans  and  the  estnnie  opponent-  «if  a  League  of 
N'ation-  ma\  1)\  <eleetni^  their  evidence  find  much  to 
sup])ort  their  particular  points  of  view.  The  advooate- 
(jf  the  one  -ide  can  riLjhtl}  >a_\  that  in  the  -reat  maj.Tity 
of  case-  the  decrfe-  of  the  L'cjurt  have  Iieen  loyally  oheyed 
and  have  i,nven  -ati-factioii  to  both  parties.  On  the  other 
hand  it  mav  he  urmd  that  in  ca-e-  where  ^trouij  passion-- 
have  been  arou-ed  tlie  decree-  ha\e  \>vv\\  -ucce--!nll\  re- 
si>ted.  and  dial  even  in  our  own  day  the  (,^a^■I  has  heeii 
for  a  time  faced  with  the  j;rave  ])rol)]tin  ..i'  how  to  en- 
force its  de.'i-ion  upon  a  recalcitrant  State. 

To  form  a  rii:,dit  jud.^ment  we  nui-t  view  the  matter  in 
tlie  li.uht  cif  hi-tor\.  When  the  -i  lu  nie  "l"  a  hederal 
Supreme  Court  was  iiropomided  for  the  consideration  of 
the  States  in  17S7  it  was  received  in  many  (piarter-  with 
the  fierci'st  opposition.  At  the  present  da\  it  ma\  he 
fairlv  said  that  the  ijlooniy  pniphccies  indulged  in  hy  its 
opponents  have  been  entirely  falsified.  Althi  luejh  its  early 
decisions  leaned  strons;ly  towards  I'ederalism.  the  Court 
h  IS  not  lowered  the  di;^'nity  of  States  nor  encroached 
upon  the  rif^hts  reserved  to  them  under  the  Constitution. 

1116 


r;F.xi-R.\L  (-(^xcLrsKA'S 


lo: 


It  lias  iK'vtT  at'iLnipti'i!  u>  reduce  iliem  to  the  positinii  ni 
mere  provinces  subordinate  in  all  thinj^r^  to  the  will  of  liie 
central  government.  'l"he  balance  has  !)een  on  the  whole 
even!\  held  lielueeii  the  i'edera'  ( ■•  iVcrnnieut  am!  the 
individual  Staie-.  as  well  a->  hetwien  the  several  States  in 
their  relalicm  to  <;ne  am^tlier.  In  ca>e^  nut  dependiii^^ 
upon  the  interpretalion  nf  particular  documents  the  Court 
has  based  its  decisions  np^n  ll'e  broad  ]irinciples  of  inter- 
national law.  rile  doctrine  of  the  ab-ohite  eipi.-dily  of  all 
States  has  been  faith  full  \  observed,  and  no  suj,f,i;e->tie'n 
has  ever  been  made  that  the  judges  have  been  actuated  by 
anv  desire  to  jiropitiate  the  stronger  at  the  expense  ut  the 
weaker   States. 

The  limited  scope  of  this  essay  ha<  not  permitted  us 
to  examine  in  detail  the  procedure  fojluwed  in  inter-State 
cases,  r.ut  the  lawyer  who  cares  to  -tud>'  the  jirocedure 
in  the  '  rii;nial  re])ort>  will  be  im]ire>>ed  with  the  careiul 
concern  which  the  Court  has  always  shown  for  the  di^- 
nitv  anil  convenience  of  the  litigatin;.^  State>.  Rules  which 
are  strictly  apjilied  to  eiT-ure  the  projier  conduct  of  ordi- 
narv  litigation  are  relaxed  when  the  ]iartie^  are  .States  of 
the  Union.  Often  tlie  Court  appears  r.ither  t^  advi-e 
than  to  command  Technicalities  are  disregarded  so  tar 
as  possible.  \--  Mr.  ju-tice  Iloinie-  remarked  at  one 
stage  of  the  ca'^e  of  riri^iiiur  v.  ll'rsl  I  'ir^/iiiiii  (  i()i  i  )  : 

"  The  ca.-<e  is  to  be  con-^id.ered  in  the  untechnical 
spirit  proper  for  dealing  with  a  iiuasi-international 
controvcrsv,  remembering  /.lat  there  is  no  municipal 
code  governing  the  matter,  and  that  this  Court  may 
be  called  on  to  adjust  dilTercnces  that  cannot  be  dealt 
with  hv  C"ongress  or  disposed  of  by  the  legislature  of 
either  State  alone.  .  .  .  Therefore  we  shall  spend 
no  time  on  objections  as  tt^  multifariousness,  laches, 
and  the  like,  exccjit  so  far  as  they  affect  the  merits, 
with  which  we  proceed  to  deal."  ' 

'  j.-o  V.  S„  J7- 


io8 


AMKRlLAX   SUPREME  COURT 


Indeed  there  is  no  case  which  better  illustrates  the  lengths 
to  which  the  Court  will  ^o  in  its  desire  to  respect  the 
amour  pruprc  of  a  State,  even  where  the  conduct  of  the 
State  does  u<A  call  f^r  sympathetic  treatment.  In  1914 
Chief  Iu--tice  White  said,  in  s^rantiuij  one  of  the  numer- 
ou»  reijue^ts  of  the  defendant  State  for  further  delay: 

"We  think  it  mu-t  lie  conceded  that  in.  a  case 
between  <irdinary  litii;ants  the  application  of  the 
ordinary  rules  of  le.^al  jirocedure  would  render  it 
impossible  imder  the  circum^tance>  we  have  stated 
to  f^rant  the  reijue^t.  We  are  of  opinion,  however, 
that  such  conce.-sion  should  not  l)e  here  controlling. 
As  we  have  pointed  out,  in  acting  in  this  case  from 
the  fir>t  to  last  the  fact  that  the  suit  was  not  an  ordi- 
nary one  between  individu''-^  but  was  a  c(jntroversy 
between  States  involving  <  cjuc^tions  of  public 

law  determinable  by  this  C«  '  i  twder  the  exceptional 
grant  of  power  conferred  ui)wn  it  ii\  the  Constitu- 
tion, has  been  a  guide  by  which  every  step  and  con- 
clusion hitherto  expressed  has  iieen  contr.ille<l.  And 
we  are  of  the  opinion  th.it  thi--  guiding  ])rinciple 
should  not  now  be  lost  sight  of,  tn  the  end  that  when 
the  ca>e  comes  ultimately  to  be  linallx  and  irrevo- 
cablv  disposed  of.  as  ctune  ultimately  it  mu-t  in  the 
absence  of  agreement  between  the  ])arties,  there  may 
be  no  rcjom  for  the  slightest  inference  that  the  more 
restricted  rules  api)licable  to  individuals  have  been 
applied  to  a  great  public  controver-\,  or  that  any- 
thing iiut  the  largest  justice  after  the  ample-t  oppor- 
tunilv  to  be  heard  ha^  in  anv  degree  entered  into 
the  disi)ositi(jn  of  the  ca>e.  This  conclusidu,  which 
we  think  is  required  by  the  duty  owed  to  the  iiMving 
State,  also  in  our  opinion  operates  no  injustice  to  the 
opposing  S'ate,  since  it  but  affords  an  additional 
opportunity  to  guard  against  the  possibility  <jf  error, 
and  thus  reach  the  result  most  consonant  with  the 
honor  and  dignity  of  both  parties  to  the  contro- 
versy." ' 

»234  t'.   S.,  121. 


GKXF.KAL  COXCLl'STOXS  109 

The  reader  will  note  the  i^raihial  p;rri\vth  of  eonfidence 
in  the  Supreme  Court  as  evidenced  by  the  dates  of  the 
decisions.  Jurisdiction  having'  been  denied  in  tlie  Chero- 
kee case  in  1S31.  n^  fmal  jud.t^ment  on  the  nierit>  in  any 
inter-State  ca-e  was  readied  until  the  lull  of  Khnde  1-land 
afjainst  Massachusetts  ua-  (hsniissed  in  iSj^..  AUo- 
j^^ether  only  three  boundary  disputes  were  deciiled  before 
the  Civil  War.  h'ourteen  boundaries  have  been  definitely 
ti.xed  bv  the  Cnurt  in  the  period  f ri  im  1S70  t'l  our  own 
day,  and  all  the  1  ther  cases  that  we  have  examined,  with 
the  exception  of  the  unsuccessful  suit  a,L;ainst  Governor 
Dennison  of  Ohio,  fall  within  the  name  period. 

The  reason  fi'r  this  is  to  be  found  in  tlie  fact  that 
until  after  the  (.'ivil  War  the  Supreme  Court  had  not 
really  made  il^  position  >ecure.  I'ntd  the  Southern 
claims  had  iieen  tinally  overthrown  \n  battle  .\merican 
public  opinion  was  lar,t;i..,  dominated  1>\  the  doctrine  of 
"State  Rights."  D«  \\n  to  th','  time  nf  .Mar-hall's  death 
in  1835  the  Supreme  Court  had  always  leaned  to  a 
"  Federalist"  interpretation  of  the  Con--titution.  and  thi■^ 
undoubte<l!v  brou.tiht  it  into  contlict  wiih  the  j;eneral 
trend  df  .American  -eiuiment.  I're  -dent  \  an  I'.uren 
(  1837-1841  )  once  remarked  that  the  Court  would  never 
have  been  created  if  the  peo])le  could  have  foreseen  what 
it  would  <'  .  Historically  there  is  little  dnnbt  that  he  was 
perfectlv  n-ht.  It  wa-  only  with  the  j^roatest  difficulty 
that  some  of  the  States  were  induced  to  accept  the  Con- 
stitution at  all.  Could  they  have  foreseen  the  interpre- 
tations which  Mar.shall  was  soon  g<nng  tn  place  upon  its 
somewhat  vague  language  it  is  perfectly  ceri.ihi  tliat  n.  .th- 
ing would  have  induced  them  to  agree  t<  entru-t  the 
Federal  Government  with  such  wide  powers.  At  the 
present  day,  taught  by  the  wisdom  of  experience,  we  are 
able  to  see  that  Marshall's  interpretation  of  the  Consti- 
tution was  the  only  one  which  could  preserve  it  for  future 


I  lO 


AMl'.KirAX  Sl'PRF.MR  COURT 


ajjcs.  Had  the  narmwcr  doctrine  of  State  Evights  pre- 
vailed the  Union  would  either  have  j^one  to  pieces  i  r 
have  lieen  forced  to  recast  it-;  (."(institution.  Hut  we  can- 
not altogether  Manie  the  men  of  an  earlier  day  fcjr  not 
lieir.,L:  proplic't-^. 

In  the  I  ivil  War  it  was  decided  hy  the  sword  that  the 
separate  States  had  no  ri^ht  to  withdraw  froni  the  L'nion. 
In  other  words  they  did  n-.t  po~-i.'-^  the  most  elenuntary 
attrilnite  of  soverei^Mi  coinniunitie^,  the  ri;;ht  of  deciding; 
their  own  political  destiny.  Henceforth  the  "  sover- 
eignty '*  of  the  States  became  a  legal  fiction,  and  ceased 
to  be  any  longer  a  historical  or  political  fact.  The  word 
survives  in  the  technical  language  of  the  law  reports,  hut 
disappears  from  the  speech  of  c-eryday  life.  In  the 
Supreme  Court  we  find  Colorado  claiming  her  "  sover- 
eign "  r-ght  to  deprive  Kansas  of  water  and  other  States 
demanding  the  "sovereign"  privilege  of  repudiating 
their  debts.  I'.ut  the  decisions  of  the  Court  against  these 
extreme  claiin>  are  certainly  supporteii  by  the  common 
sense  of  the  average  American  citizen. 

The  true  inference  to  be  drawn  from  history  would 
seem  to  be  that  so  long  a>  the  -en.se  of  State  sovereignty 
was  >trong  the  Supreme  Court  was  comparatively  weak, 
and  did  not  always  command  the  confidence  of  the  States. 
Since  the  theory  of  State  sovereignty  was  overthrown  by 
force  of  arm-  ilu-  Supreme  ( "-urt  has  grown  >teadily  in 
strength.  Xow  that  West  \'irginia  has  at  last  decided  to 
comply  with  the  judgment  given  against  her  in  igi5 — 
and  American  public  opinion  would  probably  have  ren- 
dered a  prolonged  resistance  ultimately  impossible — we 
can  say  that  there  has  been  no  case  of  State  resistance  to 
a  decree  of  the  Court  since  the  Civil  War.  Opposition 
to  the  Court  appears  from  time  to  time  in  Americ  m 
politics,  but  such  opposition  no  longer  follows  State  lines, 
and  is  not  based  upon  any  theory  of  State  rights. 


GEXERAL  COMLISIOXS 


1 1 1 


Tlic  lc-^?nn  (if  this  f  n-  our  <<v.n  <ia_v  w mid  api'i  r  tn  l)e 
that  the  strength  of  any  iiitLTiiatiiJiial  L'cnirt  uul  be  in 
inverse  proportion  to  the  >trengtli  of  national  feeling;  in 
the  States  composini,'-  the  league.  No  Ntntesman  of  any 
country  unuM  sugfrest  tn-day  t!iat  tlic  itions  of  the 
world  .should  surrender  to  any  league  i)ouers  anything 
like  so  great  as  those  committed  to  the  Federal  (invein- 
nient  by  the  Constitution  of  the  United  States.  A>  Mr. 
[ustice  I'.reuer  once  >aid  in  tin.-  ."^unreine  Court: 


"It  is  no  longer  npcn  to  (juci^tion  tliat  by  the 
Constitution  a  nation  was  brought  into  being,  and 
that  that  instrument  was  not  merely  operati\e  Ic 
establish  a  closer  union  or  league  of  States.  What- 
ever powers  of  g'lvernincnt  were  granted  to  the 
nation  or  reserved  to  the  States  (and  for  the  de- 
scri])tion  and  limitation  of  those  powers  we  must 
alwa\s  accejit  the  Constitution  as  alone  and  abso- 
lutelv  controlling),  there  was  created  a  nation  to  be 
known  as  the  L'nited  States  of  .\merica,  and  a^-uch 
tlicn  a->unied  it-  place  annaig  the  nations  u1  the 
w..rl.L"  ' 

This  essential  fact  of  American  hi-t'iry  nm^t  always  be 
borne  in  mind  when  we  seek  to  in>titute  Cwmjian- 
sons  between  the  Supreme  C'Uirt  and  any  po>s!b!e 
tribunal  .n'  the  League  of  Xati^ns.  It  i~  neither  possible 
nor  desirable  to  fu-e  the  existing  civilised  States  of  the 
world  into  a  single  nation  and  the  tribunal  will  have  V^ 
deal  with  States  in  which  sovereignty  is  n.ot  merely  a 
legal  formula,  but  :i  political  fact. 

It  must  also  be  remembered  tliat  t\rn  the  clnsf  ties 
which  have  imiled  the  .American  States  into  a  single 
nation  have  not  in  all  cases  been  strong  enough  to  ensure 
compliance  with  the  decrees  of  the  Supreme  Cnurt. 
Cieorgia  successfully  defied  the  Court  in  the  Chisholm  and 

'  Kansas  v.  Colorado   (1907).  -"06  U.  S.,  80. 


112 


AAn:Ric.\x  sriM^i'Mi-.  court 


WnrccsteT  ca.cs  and  Irt  .lefiancc  ua.  appruvL-.l  i)v  t!ie 
political  upini.Ki  n,-  the  .lay.     1,  the  Court  had  ventured 
to  assun^c  jnri<dicli..n  oi  the  Cherokee  case  there  i.  no 
dnuht   that   it.   <leci>iun    wnuld   have   I.een   delie-l   a;;ain 
Georgia's  actinn   ua^  dehheratelv  taken  in  di>re«ar,l  nf 
solemn  treaties  hni.ln,^  the  Cnued  Stale-,,  which  under 
the    t..n.st.tutin„     (Art.     \h     are    .leclared    t,,    he    the 
supreme  law  .„    ,he   land.      It   is  hardlv  l.keiv  that  she 
unul.l  have  ,sh..\vn  any  nmre  respect  f,,r  the  judi^nient  of 
a  hiohly  unpnpular  ,ril,nnal.     .\..  ,-,,r  rhv  Dred  Scmt  case 
It  aroused  no  direct  resistance,  hecau-e  in    lorm   it  was 
only  a  dispute  hetween  a  ne;,^ru  and  his  master.     (U-;  in 
substance  it  was  a  judicial  decision  that  the  South  was 
HKht  and  tlie  .\,,rth  was  wrono,  an.!  there  is  „,,  douht 
that  L,,r.l  llryce  crrectly  estimates  „.  si^-iiilkance  wh.-u 
he  says : 


This 


judgment,   since  the   'anguage   use, 


111    It 


seeme.l  t.)  cut  utf  the  h..pe  o*  a  settlement  l.v  the 
auth.irity  ot  Congress  of  the  then  (  iH-^j)  pendin- 
disputes  over  slavery  an.l  its  e.Mensi.m,  did  much  to 
precipitate  the  Civil  War"  ' 


which 


()!  the  m..re  recent  cases  the  two  wUicii  have  caused  tlie 
strongest  p.,iitical  feeling  have  heen  f.nuisiava  v  Tru,.' 
.-Hid  rn-,iini.,  V.  ir.-:f  l-irsiuia.  In  i],e  termer  case  the 
Court  decline.l  t-  pass  ju.lgnicnt  upon  the  merits  ,,,-  ,|,e 
controversy:  hut  it  is  l,y  „.,  means  certain  that  Texas 
would  have  oheycd  an  adverse  decision.  West  \'irginia. 
after  prol.,n,^iiig  her  resistance  to  »'  >  pni„t  ,,f  ,|;in-e'r" 
has  lately  decidci  t,,  ui.jy  the  (  onsiuution  an.l  the  Court," 
hut  she  has  certainly  shown  no  eagerness  t.)  en 
the  decree  pronounced  in  1015. 

The  present-da V  moral  to  he  .Iraun  '-mm  these  cases  is 
that  we  cann..t  afford  t..  rely  s,.|,iv   up  „  ju.luial  means 

'  I  lie  Amcrii-aii   CommonwaHh    (o.l.    iqu  ).   vol.   i,   ,,.   j,,. 


'ni[)Iy  with 


Gr-:xi:RAL  coxcLrsioxs 


113 


of  settlement  in  c-a>es  uliicli  arduse  stroiiL;  national  I'eel- 
inp;  and  sprinj;  fri)ni  a  contlict  nt  princi])lcs  that  cannot 
he  rcs(jlve<l  entirely  liy  lethal  rules.  These  cases  may  be 
imagined  in  some  such  t'limi  as  this: 

A  dispute  arises  hetween  Utnpia  and  Arcadia  which 
inflames  the  national  teelini;-  nf  iioth  countries  and  excites 
the  keenest  interest  throu.i,diont  the  civilised  world.  It  is 
referred  to  an  international  (.'nurt  nf  live  juds^es.  Two  of 
these  come  from  States  where  pojiular  sympathy  is  with 
Utopia,  and  two  from  countries  where  fcelinc:  runs  high 
in  favour  of  Arcadia.  The  fii'th  belongs  to  a  country 
where  feeling  is  sharply  divided,  as  it  has  been  in  certain 
neutral  States  during  the  late  war.  1-A-en  the  i)est  and 
most  upright  of  judges  are  hut  men,  and  their  minds  are 
moulded  hy  the  same  influences  as  tho.se  of  other  men. 
It  is  almo--t  certain  that  in  such  a  case  the  decision  of  the 
(/ourt  will  he  rendered  1)_\  ;i  majority  of  three  to  two,  and 
the  actual  result  will  depend  upon  the  part\-  in  his  own 
State  to  which  the  fifth  judge  hajipens  to  belong. 

Mutiilis  )i!ittinulls.  that  is  what  happened  in  the  Dred 
Scott  case.  It  is  also  what  hajjpened  in  the  Legal  Tender 
Cascs  of  TS70  and  1S71,  where  the  Court  in  the  later  case 
reversed  its  own  derisi<jn  in  the  earlier  case,  the  judges 
being  divided  exactly  along  part}-  lines.  In  spite  of  the 
hitter  things  said  al)out  the  jttdges  at  the  time  there  is 
no  doubt  that  they  decided  (juite  honestly  according  to 
their  lights.  Tint  it  is  obvious  that  independent  nations 
will  never  consider  themselves  to  be  bound  hv  such  a  de- 
cision in  c  ses  whore  their  honour  or  vital  interests  are 
at  stake. 

We  a.e  therefore  driven  to  conclude  that  no  possible 
Court  iif  the  Nations  can  pmvide  u>  with  an  absolute 
security  against  w.ir.  'ibis  .statement  applies  not  only  to 
cases  of  deliberate  nurage,  such  as  tlie  frussian  raid 
upon  the  civilisation  of  Europe  in  1914,  but  to  cases 
P.  4345  H 


H4 


A.MI.Ik'IC W   SL' 


.Ml-;  COL' I;  i- 


uluTc  tlKTc  IS  ail  liMiK-t  tdiillai  of  iiucrc-t-  .,r  ideals 
and  -u(h1  c.r-unicm.s  can  l.u  ur-cd  un  both  sides.  We  arc 
not,  however,  (hiven  l,y  ^uch  a  conclusion  to  infer  that  a 
permanent  uitern.atmnal  tnl.inial  i^  an  impr.-icticahle 
<lrea!u  or  that  it  mvuivev  ,•„,  intolerable  surrender  of 
national  ri-lu^.  The  history  of  the  American  .^ui.reme 
C'ourt  and  the  hi^t.  ry  ,)f  international  arbitration  u,m- 
hn.e  to  nei^ative  any  vnch  nieielv  euiical  co^clu^i.^l. 

There  are  three  p.-Mi,le  methods  of  vettlin-  am   dis- 
pute—aj^reement,     liti-atioii.     and     (ij^hting.'  '    Tiiis    is 
•.•(pially  true  (d'  nations  and  of  individual-.     The  practice 
nf  decidm-  individual  (|uarrcls  by  fi;:htin-  prevails  to  a 
,i;reater  or  les-  extent,   uh.aiever  the  law  may  be.  in  all 
countries,  and  in  no  civili>ed  comnnuiity  is  it  'jommouer 
than  it  i-  in  some  of  the  American  .States."     Any  luiro- 
pean  vi-itor  who  has  i\u  opportunity  of  travelling  „,  the 
more  ..ut  of  the  w,iy  parts  of  the  .s,,i„lKrn  and  Western 
States  is  apt  t.i  i)e  surprised  ulun  he  fmd.-,  h-w  widelx 
recognised  by  ,,„l,!ie  ,, pinion  i-  ihe  right  of  private  hill- 
ing. ^    I-or  example,   in   M,me  State,  it  is  practicallv   im- 
possible to  procure  ,i  C(.nvicti-n  I'.-r  nmrder  ,,r  even  man- 
'  A    ,-.tri,-t,r    .-.nalysis    might    even     n-.luoc    iIk-    alternativ.-s    to 

y  t;oth  i«rfes,  ,!,.  d.spute  has  r.ally  been  settled  bv  aJVecni  m  t 
that  15  to  sa\.  agrecinciit  t..  accept  the  iudgment  of  the  Conr.  If 
on   the   other   h,,„d,   one   party   rVfu>es  ^o^om,  Iv,    t    ^  d,x"[4'  en' 

bailitTs    or  other  persons  accustomed  to  use   violence        n   sucl.   :,' 

:c.s'l"o?'i'£  :;;s,.S",",i^„ir'  •■• '" "" ""■''"  •""■? 

.o^iX"  >™".fS:  r,',  ',';.';-S;";„;v'l,  ,■:■:.  ;■"■•;""•'-■  /"-■"■, ,'™ 


(.i':.\i:uAi.  (.().\(  i.r.sioxs 


"5 


?l.iii-htcr  if  tlu'  sl.-iytT  i.  actuated  by  any  reasonable  de- 
!.;Tce  .)t  jei''-)v-y.  In  uther  words,  puiilic  ojiinion  in  such 
ci  immunities  act  ,  uj)  n  preci.-ely  tlie  same  princijjle  which 
lead>  nations  niii.  war.  tliat  in  certain  cases  whicli  arouse 
stronjj  passi,,n>  men  cannot  he  expected  to  alinw  lawyers 
tM  decide  their  (|uarrcN  for  them,  "i'et  even  in  the  wildest 
and  remotest  ot  these  ci'mmimities  nn  une  wnuld  su<'-"-est 
that  the  existence  of  hlood  feuds  is  a  i,'oo<l  reason  for 
aholisjiin^f  all  curLs. 

I^'tii  jitiUcis  c>t  aDipluirc  jiirisilictioiu-in :  a  f^-nid  jud'^c 
ouj^ht   to   aim   at   e.xtendin-   his  jurisdictinn,      'i'iie    real 
value  ot   -nod  ciiurts  is  that  they  (h-velnp  the  hahit  of 
peacetid  settlement  at  the  expense  of  the  hahit  (jf  tightins-. 
I'.ven    m    the    m^st    vinlent    communities    trinunals    that 
command  the  iiulilic  re.spect  will  -radually  draw  V,  them- 
selves  an   increasnii;  number  oi  disputes   which   wijuld 
otherwise  be  settled  by  the  u^e  of  tlrearms.     All  men  are 
lar-ely  creature-  ,,f  h.ibit.  an<l  it  the  method  of  judicial 
settlement  cnce  c.^nies  {.,  be  re-.-irde.l  a-  normal  it  will 
.gradually  su])ersede.  even  tlmu-h  it  may  never  entirely 
eradicate,  the  settlement  of  (lisi)utes  by  violent  means.     As 
Maine  has  pointed  out.  this  is  exactly  what  has  happened 
in  llruish  India.    The  establishment  of  a  svsteni  of  honest 
and  etticient  trii)unals  has  drawn  to  the  bar  a  vast  number 
of  di-putes  which  would  otherwise  have  been  settled  by 
private  verii^eance. 

it  IS  precisely  the  same  with  nations.  States  are  com- 
munities of  men  with  the  characteristics  of  men,  an<l 
statesmen  develop  habits  of  gijvernment.  In  technical 
lans:uage.  they  follow  precedents.  If  anv  international 
court  which  may  be  established  is  such  a's  to  command 
the  confidence  of  the  nations  concerneil  it  will,  as  time 
goes  on.  be  entrusted  more  and  m.ire  frequently' with  the 
solution,  of  international  controversies.  As  theAmerican 
Supreme   Court   has   more   thati  once   expressed   it.   the 


I  \(, 


.\Mi:i\F(\X  SrCRF.MF.  COURT 


trihtiiial  will  ^-uccccd  in  makinf:^  (iiK-tiuns  ju^ticialile 
which  wxTo  iidl  ri'L;ar(lcii  as  justiciahle  lx;{orc.  It  is  not, 
human! V  speaking,  pi^jhahle  that  all  pnssii)le  causes  of 
iniirtiatinna!  cnutrovcrsy  will  be  hroiis^hi  within  the  raii<:;;e 
<if  juilicial  -eltknieiil.  iWit  it'  the  C'nurt  by  it->  actual 
prai'tice  ju>tit'ies  it^cli'  bel'nre  the  CMinninn  juil^gnient  nf 
civili-dl  mankind,  it  is  certain  that  the  cases  submitted 
to  its  decision  will  ,L;TadualK'  increase  in  numl)er  and 
variety.  'Vci,  iinuh  niu^t  not  be  expected  at  the  start. 
Abire  than  hall"  a  century  elajised  be  lure  the  .\merican 
Su])renie  (.Murt  rendered  its  first  final  decree  in  a  >uit 
between  tun  States,  and  the  prnblems  which  it  has  had  to 
Milve  are  simple  compared  with  tlmsc  which  are  likely 
to  cnnl'rtint  a  tribunal  hi'MiuL,'  juri-dictii)n  over  really 
independent  nation-,  it  can  h;.rdly  be  hoped  that  the 
Court  will  render  perfect  decisidus  in  all  cases,  or  that 
every  decree  will  meet  with  a  ready  acceptance  bv  the 
un>ncce>-fu!  party.  I!ut  every  (leci-i>in  that  is  acknowd- 
cdqed  to  be  ju-t  and  every  instance  of  ready  compliar^e 
will  hell)  '"  niake  smooth  the  way  toward  the  establish- 
ment (if  the  •deal,  which  is  nothinjj  less  than  the  rule  of 
ju>tice  -1.  ir,, -ration,:]  nfifairs.  The  immcdir  nroblein 
for  the  ])revent  day  is  to  make  a  >tart  in  uie  right 
direction. 

Another  le-^on  which  American  historv  teaches  us  is 
tin-.  Any  problems  which  are  certain  to  arise  mu>t  be 
fully  considered  in  advance,  and  rules  for  their  solution 
must  be  set  down  in  black  and  white.  For  the  sake  of 
immediate  aL^reement  the  framers  of  the  American  Con- 
stitution deliberately  avoided  some  awkward  (juestions. 
They  did  not  say  ahether  Congress  could  regulate 
slavery;  in  fact  the  very  words  "  slaverv  "  and  "slave" 
are  alisent  from  the  document.  Again  fliey  were  silent 
upon  the  vital  (juestion  whether  a  State  could  or  could 
not  withdraw  from  the  Cnion.     To  leave  those  <iuestions 


rii;.\i:R  \i.  (oxcltsioxs 


r  I 


unsettled  may  liavo  -itvcI  their  Miiincdiate  purpose,  but 
it  was  invitin,;;  war  in  the  future.  The  ,!j;reat  question  of 
how  to  eiifMree  llie  will  nf  the  wliolo  upon  tin-  States  is 
n.it  livah  with  e.\i)licit!y,  tliou-,rh  much  may  lie  inferred. 
Xotlnn,!,'  is  said  ab(jut  the  mode  of  enforcing;  compliance 
with  judicial  decisions,  unless  we  can  find  it  in  the  words 
wherein-  the  President  is  n.ade  c^  mman<ler-in-chief  of 
the  Federal  armed  forces,  and  is  charged  (Art.  II.  S.c.  3  ) 
to  "take  care  that  the  laws  he  faithfully  executed."  It 
wa-  under  the  authority  of  the-e  words  that  Lincoln  took 
his  measures  against  tlie  Southern  States  in  iSf)!. 

The  difficulty  of  providing  in  advance  a  permanent 
solution  of  all  such  questions  is  indeed  great.  But 
greater  is  the  danger  which  lies  in  the  policv  of  leaving 
them  undetermineil  in  the  vague  hope  tliat  a  solution  may 
after  all  never  he  required.  Nations  may  fairlv  he  ex- 
pected to  ahide  by  obligations  which  they  have  under- 
taken with  their  eyes  open,  but  they  cannot  be  expected 
to  acquiesce  in  deei^dns  which,  in  the  absence  of  specific 
•  ..les,  mu>t  depend  on  the  persona!  opini.jns  of  a  small 
body  of  judges.  The  decision  in  the  Dred  Scott  case  was 
of  this  character.  The  Con.stitution  said  nothing  about 
the  aiii^  :ty  of  Congress  to  deal  with  ,-laverv,  and  the 
judges  were  therefore  forced  to  decide  according  to  their 
own  private  ideas  of  right  and  wrong.  .-\  legal  judg- 
ment upon  a  great  political  issue  delivered  in  Mich  cir- 
cumstances naturally  carried  no  moral  weight  with  those 
who  did  not  already  accept  the  view  taken  b\-  the  ma- 
jority of  the  Court. 

The  greatest  of  all  difficulties  is  of  course  the  problem 
of  enforcing  upon  tlie  members  of  the  League  the  com- 
mon will,  if  there  is  one,  of  the  whole  bodv.'whether  that 
will  be  expressed  through  the  judicial  or  through  other 
organs.  It  mu>t  lie  admitted  at  the  outset  that  in  certain 
vita!  matters  un  State  will  con-nt  in  the  last  resort  to 


ii8 


A.MI'.Rk  AX   SL  TRi-.Ml':  COlkl" 


accej)t  any  i/thcr  will  than  its  (j\vn.  i'.ut  even  in  the  lesser 
matters  which  are  entrusted  to  the  judgment  of  the 
League  it  wil'  be  necessary  to  make  ex])rcss  provision  for 
the  securing  of  ubechcnce  to  the  common  will.  If  there 
is  no  expHcit  rule  each  State  will  Ite  lawfully  and 
honourably  t.:*itle(!,  whenever  the  question  arises,  to  act 
u,)on  the  interpretation  that  best  suits  its  own  interests. 
Unless  the  constitution  of  the  League  deals  adecju'itely 
with  this  es>ential  matter  the  cause  of  judicial  settlet^.ient 
will  not  in  i)i-,:<-tice  be  advanced  much  further  than  it  ha^ 
already  been  carried  by  the  existing  system  of  arbitration 
treaties.' 

Furthermore  no  Court  of  the  Xations  can  possibly  sat- 
isfy the  world  unless  it  administers  a  known  and  written 
code  of  international  law.  On  many  important  questions 
of  international  law  there  is  no  general  agreement  and  the 
actual  practice  of  nations  has  in  fact  dit'fered  witlely. 
ihe  American  Supreme  Court  could  never  have  held  the 
Union  together  withovt  the  express  provisions  of  the 
written  Constitution.  The  States  could  never  have  been 
induceil  to  accept  decisions  fixing  their  relations  to  the 
United  States  or  to  each  other  it  those  decisions  had 
rested  on  nothing  better  than  the  personal  opinions  of  the 
judges.  Hostility  to  the  Court  has  been  caused  chiefly 
by  its  decisii)ns  upon  the  vaguer  clauses  of  the  Consti- 
tution. Its  interpretation  of  a  few  ambiguous  phrases 
^a^  thrown  open  to  Congress  a  vast  field  of  activity  w  hah 
the  public  opinion  of  17S-  would  almost  certainly  have 
reserved  to  the  States.  It  cannot  be  expected  that  the 
nations  of  the  m  idem  world  will  be  willing  to  leave  im- 
portant rights  at  the  mercy  of  judges  who  are  fettered 
by  nothing  stricter  than  their  own  predilectiims.     'Ihose 

'  This  chaptrr  was  written  Ixfon-  the  publication  nf  tlic  I.caRtic 
of   Nntions   Covt-natit   in   tlu-   pvarc   treaty   witli   Germany.     I   have 
tliniitiht  it  liost  to  leave  tin-  tr\l  a>  it  w;is  written  without  attimpt 
inR  t<>  nuiiiire  hr  *   far  the  Covenant  conforms  to  the  principles 
which   I   nelic.p  lo  he  «.oiitiil 


(ii:.\"l,K  \l.  (OXCLL'SIOXS  IK) 

ui  us  who  have  always  hvc^l  in  tlie  atmosphere  of  the 
Anj^lu-Anierican  common  law  niu-t  also  remember  that  in 
I  thir  jurisdictions  the  ilccisions  oi  tribunals  are  not  re- 
ganled  as  heini;  in  ihimselves  decisive  (jf  the  law.  Con- 
tinental lawyers  do  not  consider  tliat  a  disputed  question 
is  necessarily  closed  by  a  sini,de  decision  of  a  superior 
Court.  They  are  accustcjnivd  to  clearly  codilied  s}., terns 
of  law.  and  mu,-t  not  be  expected  to  accept  the  English 
view  that  a  court  can  be  safely  left  tcj  build  up  a  -vstem 
ol  law  by  its  own  decisions  in  particular  cases. 

It  thin  we  have  correctly  estimated  the  work  of  the 
Supreme  Court  of  the  United  States,  the  practical  lessons 
for  our  own  time  to  be  drawn  from  its  history  may  be 
summarised  as  follows. 

In  the  first  place  it  is  hopeless  to  expect  that  every 
possible  cause  of  controversy  between  independent  States 
admits  of  fmal  settlement  by  judicial  decision.  Certain 
cases  in  which  the  existence,  the  honour.  (;r  the  most 
vital  interests  of  the  nations  are  involved  can  only  be 
settled  by  a.greement  or,  in  the  last  report,  by  war. 

Secondly,  it  is  reasonable  to  hcpe  that  the  establish- 
ment of  a  permanent  tribunal  constructed  on  sound  prin- 
ciples will  lead  in  the  course  of  time  to  the  growth  of 
an  international  jjractice  of  submitting  controversies  to 
judicial  decision;  and  if  the  conduct  of  the  Court  is  such 
as  to  justify  the  expectations  of  its  founders  we  may 
anticipate  tli.it  the  cases  brought  before  its  bar  will  grad- 
ually increase  in  inunber  and  varietv. 

Thirdly,  it  is  essential  that  certain  vital  questions  which 
must  inevitably  arise,  such  as  the  problem  of  ensuring 
compliance  with  decrees,  must  1k>  clearly  and  unambigu- 
ously pr. -vided  for  in  advance. 

Foui-thI;.,  the  ju.Igments  of  the  court  will  not  com- 
mand general  assent  unless  it  administers  a  definite  and 
written  system  of  infernati'  nal   law  drawn   uj)  bv  the 


I20  AMERICAN  SUPREME  COURT 

agrcciiK'iit  .ji  a!I  ilic  States  wliicli  Lecume  members  of  the 
League. 

If  tile  Court  is  established  and  developed  upon  sound 
principles,  there  is  almost  no  limit  to  the  services  which 
it  may  uhiniately  render  t<.  the  cau>e  of  mtirnational  ju^ 
tice  and  ])eace.  ilut  if  ilie  diMre  to  obtain  a  speedy 
a,t,^reement  or  the  reluctance  to  tackle  dit^icult  problems 
tem]>ts  statesmen  to  lay  the  foundations  badly,  the  experi- 
ment i>  liuund  to  end  in  failure.  The  worst  peril  of 
failure  is  that  it  may  lead  men  tn  the  despairint;  con- 
clusion that  tile  peaceful  and  righteous  settlement  of  in- 
ternational disputes  is  nothing  better  than  an  idle  dream. 


THE    END 


INDEX 


Account 

IJccrt'cii  betwotri  States,  W 

Items  of,  coiibidercd  by  the  Court,  /O-l 

ACCRKTl    N 

Defined,  41 
Instances  of,  4.',  53 
AcQUiESCENXE  (See  Possession) 
Agreements  Between  States 

KlTtct  of,  considered,  3O,  38-9,  43,  55,  67-8,  75-6 

Suggested  by  the  Court,  53,  08 
Articles  ok  Coneederation,  i,  3-5 

Judicial  provisions  of,  4-5 
Avulsion 

Defined,  42 

Instances  of,  4.',  47,  55-6 
Bank  of  the  United  States 

Controversy  concerning  the  cliarter  of,  yo 
Boundaries 

Nature  of,  in   America  and  in   Europe,  34-5 

Principles   of   decision    applicable   to,  56-9 

Procedure  in   determining,  37 

Doctrine   of   long   possession   applied   to,   35,   36,   41,   43,   50, 
54,  55 

Doctrine   of   self-determination  not  applied  to,   35,   yj 

In   navigable  channels,  4^-3,  51,  7O-7 

Mathematical,  34,  3O-7,  43,  44.  54 

(See  also  Accretion,  Avuls  ,   ,  Rivers,  and  Tha'.wec) 
Civil  War,   1861-5 

Relation  of  the  Supreme  Court  to,   12,  yi-3 

Claim  by  New  York   for  money  spent   in,  65 
Claims,  Court  of 

Kstablishment  of.  31-2,  63 

Suits  by  States  in,  32,  64-7 
Code 

Necessity  of,  for  an  international  tribunal,  88,  iiSjo 
Constitution  of  the  United  States,  Ch.  I 

Judicial  provisions  of,  7-9 

Tenth  Amcndnunt  to,  I 

Kleveiith   Aiucniliiient  to,  9,  21,  95 

Other   Amendments  to,   13,  93 
Costs 

Practice  of  the  Supreme  Court   re>;irdiiig,  37,  52,  81 
Debts  of  the  States,  Ch.  1\' 

Suits   by    individuals  to   recover,   9,  (x) 

Question   of   interest  upon,  61-2,  65,  70-1 
121 


122 


INDEX 


Embarco  L-po-  <r. 

Legality  i       -uiisidered.  _'j-4,  77-9 
English  Law 

Position  of,  in  American  juri5|iru(Iencc,  15,  57-8,  83 
Execution,  Ch.  Vl 

Importance  of  tlie  prolilem  of,  117-18 
Fishery 

Kights  of.   m  territorial   waters,  47-5J 

FOKECLOSIRE 

Decreed  against  a  State.  22,  98-9 
Foreign   States 

Indian  tribes  not  included  among,   15,  73 

Suit  liy  Cuba  against  South  Carolina  not  prosecuted,  75 
Fugitives 

Obligation  of  a   State  to  surrender,   18,  95  7 
Gifts 

Validity  of.  uiiatTectcd  by  motives  and  status  of  donor.  22 
Hamilton,  Alkxandek 

Views  of,  upon  the  enforcement   of  decrees  against   States, 

101-2 

Indian  Tr'ues 

Legal  position  of,  15,  73-5,  89 
Intf.rnation  \L  Law 

Applied  by  the  Supreme  Court,  3.  41-3,  51,  53,  83-4 
Irrigation 

Injury  by,  J4-5,  81-7 
Islands 

Disputes  as  to  ownership  of,  39-42,  47-52,  53 
Jackson,  Presihent  Anhrkw 

.Attitude  of,  towards  the  Su|.'reme  Court,  89-91 
JuBismcnioN  OF  tiif.  Supreme  Court.  Ch.  II 

Defined  by  the  Constitution  and  Judiciary  A;t  of   1789,  0-g 

Curtailed  by  the  Eleventh  .Amendment,  9,  21,  95 
Maps 

F.fTecf  of  errors  in,  considered.  45-7 
Marshall.  Chief  Justice 

Influence  of,  upon  the  Constitution,  10,  89-90 
Missouri  Compromise,  1820.  91 
Nuisance 

•Action   for,  against  a  State.  25-6,  79-81 
Political  Qi  i.stions 

May  become  judicial,   17 
Possession    (See  Boi-ndaries) 
Procedure,  Rilis  of 

Application  of,  where  States  are  parlies,  3,  36-7.  (*),  107-8 
Resistance 

Instances  of,  to  decrees  of  llie  Supntne  Court      Ch.  \'l 
Quarantine  Laws 

.Action    airainst    a    State   based   upon    unfair   administration 
of.  «-4.  77i> 


IXDKX 


12- 


Kip\Ri.\.\  States 

Rights   of,    in   common    stream,    J4-6,   7:..-    yo.x- 

li5fc    also    30LNUAK1KS;  ^'' "    ^^     ' 

Rivers 

Banks  of,  ,is   houndaries,    37-8,  54-5 
tltut   Of   ch;,ngt-s   in.   upon   boundaries,    M,  ±2 
Jurisdiction  of  Congress  over  n.uiKablJ,  rV;    «2-i 
(See    also    Accretion-,    Avu.sion,     CojNUAi^JES    \L■Is^scE 
Kii'AKiA.v   States,  and   Tii  u  wko)  -^ci^a.sce. 

Sea,  Arms  of  the 

Question   of   bnundaries   m,   47- qj.   5.,., 

Set-off 

Question  of,  ni  actions  upon  .State  debt^   fii 

Sfwaoe  (Sec  Nli.sa.nce) 

Sl.AVEHV 

Controversy  concerning,  gi-,) 

SoVEREIG.VTV 

Theory   of.    in    the   American    Constitution     1-1     ,10 
States 

Equality  of,  84 

Duties  of  the  governors  of,  96-7 
Slpremk   Coirt 

Origin  and  functions  of,  Ch    I 
Attitude  of  public  opinion  Kmards,  8(>-go   100 
Position  ot    in   political  cont.ovcrsies,^'-, 
InHuence  of,   considered,    ii-ij,   Ch.    VII 
Ta.vev,  Chief  Justke 

Opinion  of,  in   Dred  Scott  case,  <>i-i 
Tax 

Qu'^stion  of  mandamu!:  to  a  State  to  levy    102  i 
Limits  of   htate   exeinption    from   Federal    6s-7 
Texas 

Admission  of,  to  the  Union,  2.  44- 5 
Thai.wi  I, 

Rule  of,  e.xpl.nnr  (I  and  applied,  51,  52- 1 
Traiie 

Liabilities  of  States  engaging  in,  65-7 
Treaties 

Doundaries  depending  upon.    iw.  4..-,     4,.-     .^ 
Violation  of,  by  States,  n-:,,  %  ^    ''    ^^    '   •* 
United  .St\tes 

Suits  by,  2<>-,5o.  44-7,  61-3 
Buits  against.  30-3,  63-7 
Intervention  of,  in  inter-State  suits,  18  8'-t 
Relation  of.  f„  the  Stales,    1.   18,  6rj,   \\\ 
W,\i» 

Power  of   tribunals   to  avert,  disoi<!':ed    Cb     \|| 

Wh<:t    X'lRfilNIA 

Formitinn  of.  10-21,  27.  jS-o   67  8 
^8,'!'."io,"^'  '°  '°"''''^'  "■"''  ^'""'^  '*'  "^''  Supreme  Court, 


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